Cross-Border Cooperation in Criminal Matters

by

Saskia Hufnagel

• LAST REVIEWED: 25 November 2014
• LAST MODIFIED: 25 November 2014
• DOI: 10.1093/obo/9780199796953-0118

Introduction

Cross-border cooperation in international law can refer to a number of principles and practices. Given its “cross-border” nature, it is most likely to be found in bilateral rather than international contexts. It can, however, be encouraged and enhanced by international law. International laws have developed principles on cooperation that reflect on economic and military as well as law enforcement cooperation in the states that adhere to them. The most prominent general principle in this area is the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations. Cross-border cooperation in criminal matters has been regulated since the 1950s at a multilateral level, most significantly in Europe. Considering the vastness of the subject area, cross-border cooperation is here referred to with a focus on security and law enforcement. Unlike other international laws affecting cooperation, security and law enforcement regulation at the international level has not been dealt with in previous articles. Since international law affecting cooperation is limited, this article will further consider regional and, in particular, European Union (EU) cooperation, as well as forms of multilateral and bilateral cooperation. Furthermore, formal cooperation frameworks, whether truly international or regional, are rarely compared to the “informal” cooperation mechanisms that have developed alongside them. Informal cooperation practice could be said to exist to compensate for the shortcomings of legal frameworks. Literature acknowledging this is therefore also presented.

Transnational Criminal Law

Before going into the different types of strategies of international, regional, bilateral, and multilateral cooperation, the legal background of transjurisdictional cooperation in criminal matters has to be outlined. The legal confines of cross-border cooperation have rarely been dealt with in the literature. One of the exceptions is Boister 2012, written by probably the most prolific author in this field. Rather than assessing international criminal law and jurisdiction, Neil Boister focuses on the transnational level with its multifaceted relationships between individual states and little international guidance. Bassiouni 2008 and Bassiouni 1974 focus on international criminal law and the jurisdiction of the International Criminal Court. Wise 1994 and Fijnaut 2000 address the difficulties of legal diversity in the area of transnational crime. Cyrille Fijnaut does this with a focus on the role of the UN in the harmonization process, while the essays collected by Edward Wise, similar to the work of Boister, shed light on different transnational relationships and the difficulties of cooperation in the light of legal diversity. Delmas-Marty and Spencer 2002 is the only comparative volume on criminal procedure in European states. This very important publication not only outlines different procedural codes but also compares them with a view to the practice of criminal law, which makes it an invaluable contribution to transnational criminal law in the European Union (EU) context. Lastly, Sheptycki 1996 provides a tour of developments in international criminal law and transnational law enforcement relating to drug trafficking, and it shows what this reflects about the emergence of a transnational, democratic world order.

• Bassiouni, M. Cherif. “An Appraisal of the Growth and Developing Trends of International Criminal Law.” Revue Internationale de Droit Pénal 45 (1974): 405–433.

  In this article the development of international criminal law is reviewed, with a focus on individual responsibility. It not only outlines the historical origin and development of international criminal law but also discusses its goals, sources, and, in particular, the enforcement techniques and procedures employed to put it into practice.

• Bassiouni, M. Cherif, ed. International Criminal Law. 3 vols. 3d ed. Leiden, The Netherlands: Martinus Nijhoff, 2008.

  This publication helps to understand the legal mechanisms underlying cross-border cooperation. It consists of three parts: sources, subjects, and crimes (Vol. 1), multilateral and bilateral enforcement mechanisms (Vol. 2), and enforcement through international and domestic criminal tribunals (Vol. 3). In particular, Vol. 2 deals with matters relevant to international cross-border cooperation, such as extradition, mutual assistance in criminal matters, and judicial assistance.

• Boister, Neil. An Introduction to Transnational Criminal Law. Oxford: Oxford University Press, 2012.

  DOI: 10.1093/law/9780199605385.001.0001

  This is an outline of international and multilateral regulations that oblige states to criminalize offenses. It gives an account of the establishment of jurisdiction over these crimes and the ways in which it can be enforced. The book gives various examples of national law to put the implementation of international law into context.

• Delmas-Marty, Mireille, and John R. Spencer, eds. European Criminal Procedures. Cambridge Studies in International and Comparative Law. Cambridge, UK: Cambridge University Press, 2002.

  This book brings together assessments of the different criminal procedures in the European states of Italy, France, England, Germany, and Belgium. It furthermore compares these systems and draws out particular similarities and differences between them in its Part II (“Issues of Current Interest”).

• Fijnaut, Cyrille. “Transnational Crime and the Role of the United Nations in Its Containment through International Cooperation: A Challenge for the 21st Century.” European Journal of Crime, Criminal Law and Criminal Justice 8.2 (2000): 119–128.

  DOI: 10.1163/15718170020519085

  In this article the concept of transnational crime and its importance in today’s society is outlined. It furthermore describes the actual and potential importance of the United Nations in international cross-border cooperation to combat transnational crime, and it puts the major responsibility in this endeavor on the cooperating member states that put international laws into practice.

• Sheptycki, James W. E. “Law Enforcement, Justice and Democracy in the Transnational Arena: Reflections on the War on Drugs.” International Journal of the Sociology of Law 24.1 (1996): 61–75.

  DOI: 10.1006/ijsl.1996.0004

  This article considers the continuing emergence of transnational enforcement practice of criminal law. It argues that operating within and between legal jurisdictions has given police the power to make extrajudicial legal decisions. Therefore, police have partly acquired the power to make decisions about the fit level of punishment for a given offense.

• Wise, Edward M., ed. Criminal Science in a Global Society: Essays in Honor of Gerhard O. W. Mueller. Publications of the Comparative Criminal Law Project 18. Littleton, CO: F. B. Rothman, 1994.

  Prominent scholars and practitioners in the field of enforcement cooperation in the area of international criminal law wrote this collection of essays, which brings together examples of the practice of international cooperation as well as influences of national and international policy impact in the field. It highlights problems of national legal differences and the lack of legal harmonization.