Policing Global Regions

The Legal Context of Transnational Law Enforcement Cooperation

Saskia Hufnagel

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000081312
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book provides a stocktake and comparative socio-legal analysis of law enforcement cooperation strategies in four different regions of the world: the European Union (EU), North America, Greater China and Australasia.

The work analyses law enforcement cooperation mechanisms within the socio-legal framework of global normmaking. The strategies addressed range from legal frameworks facilitating cooperation to formal and informal police networks and cooperation practices. The study also takes into account crime-specific engagement, for example campaigns focusing on drug crimes, terrorism, financial crime, kidnappings and other offences. It explores challenges in policing practice and human rights protection in each region that could be countered by existing strategies in another. As regions usually develop more advanced cooperation mechanisms than exist at a global scale, strategies found in the former could help find solutions for the latter. To map existing strategies and assess their impact on both human rights and policing practice this study relies on an assessment of the primary and secondary literature sources in each region as well as interviews with practitioners ranging from senior police officers to prosecutors, government officials, customs and military staff.

This book presents a valuable resource for academics and postgraduate students, as well as policing and criminal justice practitioners, government officials and policy makers.

1Police cooperation in legal and political diversity

Negotiating transnational crime-control interests of police and governments

In a time where ‘Brexit’ is looming and the President of the United States wants to build a wall at the US–Mexico Border, examining cross-border law enforcement as one of the most sovereignty sensitive endeavours between nation states seems at odds with the global political climate. It appears that nation states want to once more retreat within and centre on themselves rather than look beyond their borders. In today’s interconnected world, however, crime does not respect national boundaries and even tighter border controls and immigration policies cannot prevent it from moving across jurisdictions.

Over the past 40 years technological innovation and significant increases in global movements of people and goods have, among other factors, facilitated the commission of transnational crimes, such as cybercrime, drug, arms and other forms of trafficking and terrorism. Transnational crime has developed from a local and regional to a truly global problem that can no longer be fought exclusively within the borders of nation states or between neighbouring jurisdictions. Already in 2004, the UN High-Level Panel on Threats, Challenges and Change identified ‘six clusters of threats with which the world must be concerned now and in the decades ahead’.¹ Included were terrorism and transnational organised crime among threats such as wars, infectious diseases, poverty and environmental degradation. It was thereby confirmed that the fight against transnational crime was a crucial element in the maintenance of international peace and security. More recent assessments of the scale of transnational crime threats furthermore support the argument that purely national countermeasures will not be effective. The 2018 United Nations Office on Drugs and Crime (UNODC) report on trafficking in persons, for example, shows that trafficking routes span the whole globe and trafficking is a major problem both within and between regions around the world.² Similar conclusions can be drawn from UNODC data on drug trafficking generally and cocaine trafficking in particular.³ For all of the above trafficking crimes the main destination regions are Europe and North America making these two regions focal points in the debates on regional and global police cooperation. Furthermore, estimates of money laundering offences range from 400 billion to 3 trillion US Dollars per year globally, while the direct economic costs for organised crime in the European Union (EU) alone run into the tens of billions euro per year.⁴ Transnational organised crime is also closely and globally interconnected with other threats, most prominently international conflicts and civil wars,⁵ indicating that because of both its scale as well as influence on international peace and security, transnational crime needs to be fought through a joint global effort.

Global law enforcement has a crucial role to play in investigating, but also preventing transnational crime. What the terrorist attacks in Brussels (2016), Paris (2015), Berlin (2016) and even on 11 September 2001 in New York have in common that they might have been prevented had police information been passed on between agencies both nationally and internationally.⁶ In the case of the 2016 attack on a Christmas market in Berlin, for example, information was not passed on between immigration services; previous convictions of the attacker in both Tunisia and Italy were not visible to German authorities and German police and intelligence services passed responsibility for his monitoring on to each other and did not act on credible information by an informer and Moroccan authorities.⁷ This case shows that the interaction of regional and global as well as national (inter-agency) police cooperation is complex but crucial to fight transnational crime effectively.

The Paris and Brussels attacks of 2015 and 2016 respectively drew particular attention to EU police cooperation as here even neighbouring EU member states had not passed on or acted on each other’s information concerning terrorist suspects. Information received by law enforcement agencies outside the EU was equally not acted on or conveyed in a timely fashion.⁸ Another major issue in all cases was the input into and the overlap of EU and international databases.⁹ It was concluded by various investigations into the attacks that, due to the patchwork of information channels, data bases, lack of effective analysis and consequently inadequate prioritisation of foreign and regional EU information, reforms were needed.¹⁰

Apart from the patchwork system of information exchange, differences in national legislation and the clinging on to national sovereignty were in the EU blamed for a lack of police cooperation and the abolition of border controls was said to make it easier for criminals to plan and commit crimes undetected. While concerns about ‘more surveillance’, lacking EU accountability mechanisms in counter-terrorism and privacy rights clearly existed,¹¹ they were now overshadowed by demands for more information sharing and cooperation.¹²

Governments urgently called for the consolidation of various legislative structures and responsible agencies at national, regional (EU) and global levels. Some changes were implemented in the EU, mainly relating to Europol and other EU data exchange mechanisms, but no major legal or strategic global reform was discussed.

While the present research does not aim to offer global cross-border law enforcement solutions either, it sheds new light on many existing problems by examining the interaction between regional and global police cooperation and the complex patchwork of law, institutions and practice at various governance levels. The analysis is conducted from a predominantly legal perspective, examining both formal (legally enforceable) and informal cooperation strategies developed in global and regional contexts and addressing their interaction, compatibility as well as implementation in practice. The EU is here a starting point, being a highly regulated region with a supranational governance framework that has frequently been the focus of police cooperation literature.

The research compares in particular regional and global police cooperation ‘mechanisms’ included in law and/or practice such as, cross-border surveillance, information exchange, joint investigations and common databases. While the mechanisms are broadly similar at regional and global levels, they are not necessarily legally or otherwise compatible. Also, while mechanisms are in the EU context mostly regulated through legal frameworks, they are in the global context (and in other regions) frequently informal. As the EU is exceptional and has been extensively discussed in the literature, the region is here compared to parts of the world that offer distinctly different governmental structures and normmaking processes and have less frequently been considered as regional models for policing: Australasia, Greater China and North America.

This chapter presents the main research questions employed to examine lawmaking in the field of regional and global police cooperation. In light of the existing literature the chapter gives an overview of the terminology used to describe law enforcement cooperation at various governance levels. Finally, this chapter outlines methodology and structure of the book.

Lawmaking and police cooperation

Law on cross-border policing includes UN conventions, regional legal frameworks, such as Council of Europe (CoE) or EU law, multilateral and bilateral treaties and agreements and national legislation on international legal assistance. Cooperation prescribed by law is complemented by informal mechanisms and practice, such as practitioner networks, joint training programmes and various day-to-day cross-border interactions. Formal and informal cooperation therefore interact, but law has been chosen as the focus of the present analysis. The idea that legislation could help to create closer police cooperation regionally and globally is, however, not uncontested and even EU practitioners have suggested that, for example in counter-terrorism policing, informal cooperation outside of legal constraints is preferable to enable fast, efficient and uncomplicated exchanges between agencies.¹³ Despite such praise for informality, which exists across the globe, the EU is subject to possibly the highest amount of legislation in the area of police cooperation in the world. This has created major differences in the way EU member states can exchange information regionally compared to non-member states and other regions. The fact that the EU rather than other regions of the world has developed legislation on cross-border police procedure is due to the close historical and political ties between clusters of states within the region (such as the Benelux or the Cross-Channel Region) and the facilitating supranational EU legislation that has been created since the 1980s. It is therefore helpful to consider the EU as a case study when examining the advances of formalisation. The other regions selected as case studies – Australasia, Greater China and North America – have not or not extensively formalised police cooperation strategies and are therefore informative comparisons to the EU situation.

As the European terrorist attacks have shown, cooperation within regional contexts is not sufficient to facilitate the policing of transnational crime as police frequently rely on information from outside regions to police crime effectively. Regional policing therefore needs to be discussed in conjunction with global policing, which includes on the lawmaking side institutions like the United Nations (UN) and on the strategic side cooperation mechanisms such as Interpol and International Police Liaison Officers (LOs). This book is therefore structured in one global and four regional case studies/chapters which are compared to learn about both the different cooperation strategies applicable in the global and regional contexts as well as, and most importantly, their interaction.

More generally, law is an important factor influencing cross-border policing in a global context as it is a fundamental ordering principle of modern societies and globalisation depends on a normative order (ideologies, norms, rules and institutions).¹⁴ Global developments therefore have to be addressed in light of legal developments. The present research is, however, complicated by the fact that police cooperation can be regulated at various governance levels and the relationships addressed are not limited to global and national/local but include transnational (bilateral and multilateral) and regional levels. Lawmaking institutions therefore involve local and national governments, intergovernmental forums, supranational regional institutions (such as the EU or the CoE) and global institutions (UN). To engage with this complex multi-level structure, law and norms on cross-border policing are here first explored at transnational/regional/global levels and related sources, processes and outcomes of normmaking are examined. In a second step, the interaction between transnational, regional and global normmaking is analysed to determine recursivity, as well as which lawmaking processes offer the greatest chances for more connected and legitimate police cooperation in the future. This book therefore broadly pursues to answer two main research questions:

1 What are the (formal and informal) norms regulating police cooperation in four regions and globally and which factors led to their establishment?

2 How do global, regional and transnational norms interact and could law at various governance levels inform global normmaking processes or be informed by them?

While the first question is addressed by taking stock and analysing the development of sets of formal norms and informal practices regulating police cooperation in four regions and globally, the second question requires a comparative examination of regional and global approaches.

To help determine existing legal processes in transnational, regional and global legal orders, this study employs socio-legal theory on global normmaking and in particular recursivity theory. Socio-legal theory has been chosen as it focuses on the move from formal law on the books to law in practice, so here the translation of global, regional and transnational norms into police cooperation on the ground, and helps to determine possible implementation gaps. However, it has been suggested that law is limited in affecting social change and just looking at the discrepancies between the law in the books and law in practice does ...