New Directions for Regional Cooperation in the Suppression of Transnational Crime in the South Pacific (Article) [2005] JSPL 20; (2005) 9(2) Journal of South Pacific Law

NEW DIRECTIONS FOR REGIONAL COOPERATION IN THE SUPPRESSION OF TRANSNATIONAL CRIME IN THE SOUTH PACIFIC

NEIL BOISTER*

INTRODUCTION

The Honiara Declaration on Law Enforcement Cooperation, adopted by the Pacific Islands Forum (hereinafter the Forum) in 1992, marked the formal beginnings of a significant regional effort to suppress transnational crime in the South Pacific. I have charted the development of this regional response – the threat assessment process, the measures taken by the Forum, and the implementation of these measures by Forum members - elsewhere.^[1] This piece begins with a summary of the shortcomings of the current approach, but it is mainly concerned with exploring the possible movement of the Forum away from a reliance on soft law towards a regional transnational crime control treaty or treaties in response to the challenges presented by transnational crime to the region and to Forum Island Countries (FICs) in particular.

THREAT ASSESSMENT^[2]

The justification for collaborative action in the region is the threat presented by transnational crime to the safety and security of Forum members. In 1992 the Forum considered that if it increased in scale transnational crime could threaten the sovereignty of member states and the stability of the region.^[3] By 2001, however, the Forum stated that there was ‘clear evidence of serious transnational crime moving into the region and posing serious threats to the sovereignty, security and economic integrity of forum members.’^[4] These threats included money laundering, terrorist recruitment, identity fraud, West African fraud, people smuggling, issuing passports of convenience, engaging in electronic crimes, small arms trafficking, illegally trading in endangered wildlife, drug trafficking and organised crime.^[5] Closer examination reveals that some threats have materialised.
There is strong evidence of extensive money laundering within the region,^[6] corruption is manifest in FICs,^[7] small arms have proliferated,^[8] the region is being used as a transit zone for both human trafficking and people smuggling, and identity document fraud compounds the problem.^[9] But other threats remain more potential than actual. Organised crime appears to have penetrated some areas and not others,^[10] drug trafficking in the region is largely directed at supplying illicit markets elsewhere and is planned and financed from elsewhere,^[11] and finally the region has the potential to serve as a platform or conduit for terrorist activities directed outside of the region.^[12] Globalisation, the size of the region and its nature as a high seas transit zone, and the manifest internal problems of FICs, have all been given as additional reasons for a regional response.^[13] The case for a regional response would, however, be far stronger if policy-makers had access to better information and analysis about the regional and external impact of all crime including transnational crime. The establishment of a regional organ to analyse criminal activity in the South Pacific would give regional policymakers the kind of information necessary to shape an appropriate response and to expose inappropriate responses.

THE HONIARA DECLARATION^[14]

The Forum’s response to the threat was to adopt the 1992 Honiara Declaration,^[15] with the aim of suppressing threatening transnational criminal activities through the implementation and use of national legislative measures in key areas.^[16] The Declaration calls for a range of procedural and substantive measures to provide for law enforcement cooperation,^[17] mutual assistance in criminal matters,^[18] money laundering control, asset forfeiture and banking regulation,^[19] extradition,^[20] suppression of drugs offences,^[21] suppression of environmental offences,^[22] suppression of terrorism,^[23] maritime surveillance,^[24] cooperation in respect of taxation,^[25] assistance in prison administration,^[26] and to address indigenous issues.^[27]
Further areas identified post-Honiara by the Forum include human trafficking,^[28] regional security,^[29] small arms proliferation,^[30] identity fraud^[31] and corruption.^[32] These measures are generally worded signposts to relevant international treaties and serve as invitations for detailed legal change though consultation with technical experts. They prioritise the smoothing of criminal justice processes between different jurisdictions by reducing barriers to all forms of legal assistance, rather than provide for the establishing of a comprehensive regional criminal law. Regional concerns such as indigenous issues appear to have been tacked on to the list of measures.

Legal responses in Forum members^[33]

Implementation of the Honiara Declaration depends first on treaty adherence by Forum members and second on legislative modernisation.
Treaty adherence by FICs has been poor. Adherence to the 1988 Drug Trafficking Convention^[34] is indicative: Although the treaty has been in force for fifteen years and currently has 169 states parties, of the 16 Forum members only Australia, the Federated States of Micronesia, Fiji, New Zealand and Tonga are currently parties. This poor adherence is nicely contextualised by the singling out of a number of Forum member states by the US State Department^[35] and the Financial Action Task Force (FATF) as countries of concern because of money laundering activities.^[36]