Strengthening the rule of law in the Pacific through international crime cooperation.

• Author: Henshaw, Ciara

Abstract

The rule of law as demonstrated through law enforcement, good political governance and an effective legal system has been identified as necessary for security, social stability, sustainable development and economic growth. Instability, corruption and lawlessness, which have at times plagued Pacific Island communities, are a clear indication of a weak rule of law. Organised criminal groups tend to target weak and vulnerable countries struggling with poor governance structures and social and/or political unrest, as is the case in many Pacific Island Countries. The aim of this article is to give a brief overview of the prevalence of transnational crime in the Pacific and its interrelationship with the rule of law. The article will then examine the range of international crime cooperation initiatives implemented in the Pacific to deal with transnational crime and the positive effect these initiatives have had on strengthening the rule of law.

Introduction

Whilst the Pacific Islands are culturally, educationally and socially diverse, there is a degree of similarity in their respective levels of governance, corruption and law enforcement capacity. The instability, corruption and lawlessness that have at times plagued Pacific Island Countries are a clear indication of a weak rule of law. In recent years there have been endless projects and initiatives developed to address this goal. Given the significance of the rule of law and the myriad of initiatives to strengthen it in weakened countries, agreement about its meaning and effect is remarkably elusive. The rule of law is rarely, if ever, a discrete legal principle in its own right; rather, it is an approach to governance on which the efficacy of law and constitutionalism rests. At the most basic level it can be said that there are three core principles to the rule of law. First, the population must be governed by general rules that are laid down in advance. Second, these rules must be applied and enforced; and third, disputes about the rules must be resolved effectively and fairly. (1) Efforts to strengthen the rule of law in the Pacific could be more successful if they focused on the specific difficulties experienced by Pacific Island Countries rather than the overarching, somewhat abstract goal of strengthening the rule of law. This article will consider the prevalence of transnational crime in the Pacific and how measures to combat this threat through international crime cooperation can strengthen the rule of law in the Pacific. The article will begin by considering exactly what is meant by the 'rule of law', the term 'transnational crime' and the relationship between the two. The article will then provide an overview of the Pacific region and the Pacific Islands Forum, and some explanation as to why Australia is concerned about the current situation in the Pacific. It will consider the prevalence of transnational crime in the Pacific and outline the benefits of using international crime cooperation to combat transnational crime. It will then describe regional efforts to combat this threat, explain why such efforts may not be effective and provide in the Pacific, which has had some success. Finally the article will outline the positive effect that international crime cooperation can have on strengthening the rule of law in the Pacific.

1. What is the Rule of Law?

   The rule of law, as demonstrated through law enforcement, good political governance and an effective legal system, has been identified as necessary for security, social stability, sustainable development and economic growth. Both the World Bank and the Organisation for Economic Cooperation and Development identify the rule of law as one of the major components of the good governance promoted by them as essential for development. (2) An effective rule of law then underpins and enables security, social stability, sustainable development and economic growth.

   In 1995 the Asian Development Bank ('ADB') adopted a policy on good governance and identified its four basic elements: accountability, participation, predictability and transparency. (3) Accountability is imperative to making public officials answerable for government behaviour and responsive to the entity from which they derive their authority. Accountability also means establishing criteria to measure the performance of public officials, as well as oversight mechanisms to ensure that the standards are met. (4)

   At the grassroots level, participation implies that government structures are flexible enough to offer beneficiaries and affected others the opportunity to improve the design and implementation of public programs and projects. Predictability refers to the existence of laws, regulations and policies to regulate society and their fair and consistent application. (5) Transparency refers to the availability of information to the general public and clarity about government rules, regulations, and decisions. Transparency in government decision-making and public policy implementation reduces uncertainty and can help inhibit corruption among public officials. (6)

   Conceptually, the four elements of governance indicated above tend to be mutually supportive and reinforcing. Accountability is often related to participation, and is also the ultimate safeguard of predictability and transparency. Similarly, transparency and information openness cannot be assured without legal frameworks that balance the right to disclosure against the right to confidentiality, and without institutions that accept accountability. Again, the predictability in the functioning of the legal framework would be helpful in ensuring the accountability of public institutions. At the same time, predictability requires transparency, because without information about how similarly placed individuals have been treated, it may be difficult to ensure adherence to the rule of equality before the law. Finally a transparent system facilitates governmental accountability, participation and predictability of outcomes. (7)

2. What is Transnational Crime?

   To some, transnational crime amounts to what is stereotypically referred to as 'organised crime' while others distinguish between it and international crime. International crimes are those prohibited by international law, including treaties and custom (for example, aggression, piracy and war crimes). However, at its most basic 'transnational crime' generally refers to any crime that crosses international borders, for example, through the occurrence of criminal activity in more than one jurisdiction or because the proceeds of the crime have moved from one jurisdiction to another. (8)

   This is reinforced by article 3(2) of the United Nations Connection Against Transnation Organized Crime which provides that an offence is transnational in nature if:

   (a) It is committed in more than one State;

   (b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

   (c) It is committed in one State but involves an organised criminal group that engages in criminal activities in more than one State; or

   (d) It is committed in one State but has substantial effects in another State. (9)

   Money laundering, illegal immigration, arms smuggling, drug trafficking, people trafficking and, of course, terrorism are the most widely referred to examples of transnational crime. However, there are many more examples including pirating or theft of intellectual property, digital child pornography, cybercrime and fraud. This list is likely to continue to grow as criminals find new ways to exploit all the opportunities that globalisation and technological advancement provide. (10)

   While it is difficult to find reliable evidence on the extent of transnational crime, the dynamics of globalisation have certainly led to a higher integration of financial and other markets, the rapid execution of transactions and the easier movement of people, goods and capital across national borders. It can be argued that, as legitimate transnational enterprises and operations have multiplied, so have illegitimate ones. The opportunities for illegal gain have increased at the very time when it would seem much easier to cover criminal tracks. Another important aspect is that States seem to be losing more and more of their sovereignty and autonomy. As a consequence, official controls are weakening, and international norms and control bodies with real teeth are underdeveloped or lacking (11) It can then be said that while transnational crime is by no means a new phenomenon, with globalisation and greater mobility of people and resources across national borders, it has become increasingly pervasive, diversified and organised. (12) Transnational crime is now recognised as a natiuonal security concern with the capacity to weaken the rule of law and undermine the stability and security of individual States as well as the stability of political and economic relationships between States. (13)

   Quite apart from the threat posed by transnational crime itself, the prevalence of transnational crime also increases the risk of other threats. Terrorists use transnational crime groups to move money, people and material around the globe. Governments and rebels sell natural resources through transnational crime groups to finance wars. Of particular relevance is that the prevalence of transnational crime and related corruption weakens a State's capacity to maintain or establish the rule of law. (14) Transnational crime has become what is seen to be one of the defining problems of the twenty-first century because of the enormous discrepancies between developing and developed countries, the presence of many weak States in which transnational crime groups can operate and an international demand for the goods and services which these groups provide. As strategies are developed to counter the threat of transnational crime, it is...