Breaking the connection.
Economic Community (EC) member states such as Spain and Italy are becoming drug trafficking crossroads. Only 10 percent of the cocaine pouring into Spain is consumed there. The remainder is directed to other European countries. Most European drug traffic is dominated by the Naples-based organized crime group called the Camorra.
Until now, European cooperation has been long on declared intentions and short on actual implementation. However, integration in the wake of the Single European Act, the ratification of the December 1988 UN Drug Convention, declarations of cooperation at the Group of Seven (G-7) Summits, and other developments are likely to cause dynamic legislative and regulatory activity in the EC in the fight against illicit narcotics trafficking.
The battle in Europe is fought primarily, but not solely, by the EC. Indeed the Council of Europe, which includes the Nordic countries and other governments outside the EC, is a key player. The new regulatory regime will have a profound impact on business and travel within the EC. What follows summarizes these trends, the implications for EC growth, and emerging international criminal cooperation.
Since drug-related crime has spread throughout Europe, European institutions are the most suitable means for stopping the plague. The basic goal of the Treaty of Rome, which established the EC, is to suppress economic and trade barriers among the 12 member states. That movement has been accelerated by the Single European Act, signed on July 1, 1987, which is aimed at establishing a "Europe without frontiers." By 1992, goods, services, and persons will freely circulate within EC territory.
Removing EC trade and economic barriers will obviously accelerate the growth of cross-frontier criminal activities-drug trafficking in particular. (1) This phenomenon will directly affect EC and European integration. In a report published in September 1986, the European Parliament stated that "the problem of drug abuse affects general areas of European policy including external relations, trade customs, law and order, health, social affairs, education, and citizens rights." (2) Therefore, the EC has a unique interest in dealing directly with drug trafficking.
At present, however, enforcement mechanisms against illicit drug trafficking are found primarily at the member state level. No criminal body of law or enforcement agency exists to implement a community response to drug trafficking. The Treaty of Rome promotes only the economic integration of member states. Political integration does not expressly fall within the competence of the EC, so that criminal law cannot yet be regulated at the community level. (3)
Although strong, direct community enforcement measures have not yet been undertaken, member states and community institutions themselves have been active in grappling, within the limits of their competence, to achieve a common response to the growing drug-trafficking menace. Each community institution has taken steps to join the movement. The following developments show how different EC institutions act in forging a community policy on regulating and preventing drug trafficking.
THE EC COUNCIL LED COMMUNITY
action against drugs at its meeting in The Hague in June 1986. The heads of states agreed to collaborate with the commission to combat drug addiction. (4) The council pointed out that international cooperation already exists, particularly within the Pompidou Group of the Council of Europe. (5)
The Pompidou Group, named after former French President Georges Pompidou, was formed in 1971 to examine the problems of drug abuse and illicit drug traffic from a multinational perspective. Twenty countries are represented in the group, including all 12 EC member states. In December 1986, the council agreed on the need to work in close cooperation with the Pompidou Group to
* stop and prosecute those who criminally traffic in illegal drugs;
* coordinate legal action and, in particular, ensure the assets of someone convicted of illicit trafficking in one EC country are liable to confiscation throughout the EC; and
* intensify cooperation between police and customs authorities. In addition, the heads of states requested a report to the next European Council with recommendation for EC and member state action.
That first community step toward cooperation in the fight against drugs signified an expansion of the EC field of action to a level that the drafters of the Treaty of Rome had not contemplated in 1958. The heads of states agreed to set up legal cooperation among themselves and organize a European jurisdiction for the forfeiture of drug offense assets.
The EC Commission also has been active in this matter. In November 1986, it adopted a comprehensive proposal on the fight against drugs in the community (6) that stated the antidrug policies had become urgent and, to be fully effective, had to be organized on a community-wide basis. (7) An appropriation of 2.25 European Community Units has been earmarked for the program.
The action envisioned by the commission is mainly for prevention, treatment, rehabilitation, and research. However, it also provides for setting up a European information system on the drug problem supported by a European data bank. The communication does not provide details on intended uses for the data bank.
The European Parliament set up an inquiry committee on the member state drug problem. It reported in September 1986 (8) that European countries lacked coordinated efforts and that a European strategic plan was required. (9) The report's recommendations are intended to be "complementary to and integrated into the activities of existing bodies" acting on an international level." (10)
The report emphasized that the international network of drug traffickers must be dealt with through international legislation. (11) It pointed out the EC's unique role in this international action because of its superior economic and political forces that enable it to persuade the world community to support policies such as crop substitution, coordination of drug and international economic policies, and control of precursor chemicals. (12)
Finally, the report urged the commission and the European Council to develop new strategies that emphasize police and customs cooperation, such as
* a European Community task force, modeled on the existing US task force program, to coordinate a European fight against drugs;
* tighter customs control at the community's external frontiers due to progressive dismantling of customs and control barriers within the community; and
* a computer network between EC nations that are not currently compatible. (13)
In October 1986, the European Parliament passed a resolution urging the European Council to adopt a draft resolution on concerted action to tackle the drug problem. The draft resolution called for
* effective measures for dealing with drug-crime money laundering, in particular a community directive on currency transaction reporting;
* amendment of existing customs regulations providing for the seizure of goods related to drug trafficking; and
* a central drug intelligence agency in each member state and exchange of information between those agencies through an efficient computer system.
In addition, the resolution expressed the council's intention to establish strict controls on community exports and imports of chemicals and precursors used in manufacturing illegal drugs. Finally, the council asked the commission to organize a European conference to study all the implications and effects of drug use to assess, among other things, the activities of criminal organizations.
The Trevi Group, which focuses on the fight against terrorism, drug trafficking, and organized crime, (14) has taken further steps toward stronger cooperation in combating drug trafficking. First, the group met on May 11 and 12, 1989, to discuss establishing a bureau to coordinate information and eventually take action on public safety. Spain proposed creating a legal regime on European information technology for identifying and controlling criminals, particularly international terrorists and drug dealers.
Second, an informal meeting of the ministers of justice of the European Community was held on May 26, 1989, in San Sebastian, Spain, under the impetus of the Spanish minister of justice. (15) Among the most significant accomplishments was the opening for signature of an EC convention on international criminal cooperation-the recent agreement on simplifying and modernizing extradition procedures. Moreover, the ministers reached agreement on confiscating funds from illegal transactions, primarily drug deals.
In January 1990, Sir Leon Brittan, the EC commissioner responsible for competition and financial services, announced that the European Commission will adopt measures urging EC members to enact legislation to combat money laundering and follow up with mandatory measures. At present Britain, France, Spain, and Luxembourg are the only countries in which money laundering is a crime. This announcement, therefore, is significant because it would require all EC members to criminalize money laundering. Britain is also leading a proposal to establish a task force on money laundering, which is expected to become institutionalized.
In sum, both European governmental and community officials are now undertaking efforts to regulate the narcotics trade and related money and organize a common police and customs action. The growth of community law related to drug products will directly affect the movement of goods, services, and persons within the community, which are the primary areas of EC intervention. The realization of the single European market in 1992 and the supplementary transfer of sovereignty from the states to the EC will strengthen community powers.
Even though it cannot yet issue direct criminal provisions, the EC's regulatory powers are likely to have a significant impact on the operation of businesses producing or developing chemical and pharmaceutical products along with corporations transporting goods and persons. Furthermore, the community can induce member states to take criminal measures through directives and regulations.
The Council of Europe (COE), created in 1949, aims to achieve greater unity among its members, safeguard and realize the ideals and principles they have in common, and facilitate their economic and social progress. (16) (COE) is an organization of cooperation, not of integration like the EC, for its goal of unity-not union-is achieved through "agreements and common action." (17) COE's interests encompass economic, social, cultural, scientific, legal, and administrative matters, and human rights. (18)
COE has been the lead European organization in international criminal cooperation. Eighteen COE treaties on extradition and judicial assistance have been concluded in the past 30 years. Among the most important are the 1957 Extradition Convention, amended in 1978; the 1959 Mutual Assistance Convention, amended in 1978; the 1970 International Validity of Criminal Judgments Convention; and the 1972 Transfer of Proceedings Convention.
Overlapping jurisdiction and rivalry between the COE and EC have caused gaps in some of the substantive enforcement efforts. In an exchange of letters dated June 16, 1987, the secretary general of the COE and the president of the Commission of the European Communities agreed to strengthen cooperation between the two bodies. (19) The agreement provided for the advisability of inserting a clause in any new draft European convention prepared by the COE-such as the Convention on the Confiscation of Funds from Illegal Drugs-allowing the EC to become a contracting party to the convention.
The commission may also be invited to participate in meetings of the committee of ministers on questions of mutual interest. Finally, high-level meetings between officials of the two organizations will be arranged to examine questions of mutual interest and consolidate cooperation, particularly in legal affairs. Pursuant to this exchange of letters, an Interdepartmental Working Party was established to follow cooperation developments.
In March 1989, the commission sent a communication to the European Council about relations between the community and the COE. (20) The communication explained that the two organizations have different political aims, fields of activity, and working methods. The COE is an organization of intergovernmental cooperation operating by means of convention and recommendations, while the EC is an organization of integration endowed with sovereign powers delegated to it by the member states.
The communication stated the goals for cooperation to ensure that the two organizations don't duplicate or overlap efforts. Finally, the commission will continue to look into possible community participation in COE conventions in areas covered by the community's powers.
Therefore, the emphasis the commission puts on the limits of the two organizations' cooperation will probably lead to separate and parallel development of their actions to combat drug trafficking. The COE will continue to cooperate, drafting conventions and implementing them through its 21 member states. Pursuant to the 1987 exchange of letters, the COE will consider inserting a clause into each of the new draft conventions allowing the community to become a party to the convention.
The last draft convention elaborated by the COE, the Comprehensive European Convention on Interstate Cooperation in the Penal Field, does not include such a provision, which means that COE and EC cooperation on extradition and mutual assistance has been temporarily deferred. The two organizations are still working on the best modes of cooperation.
UNTIL NOW EC OFFICIALS HAVE RESTRICTED the community to coordinating police and custom measures, leaving member states free to join COE conventions to cooperate on extradition and mutual assistance. However, recent publication of a commission proposal (21) signing the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (22) displays the commission's, if not the council's, intent to involve the community in legal cooperation with other states.
The documents already mentioned also demonstrate an intent by the various EC organs to take action against the drug menace. The bases for establishing legal and even criminal measures to implement new policies may already be in place. For instance, the European Parliament, in recommending new antinarcotics trafficking measures, cites as basis the EC's duty to regulate affairs affected by drug abuse, such as external relations, trade and customs law, law and order, health, social affairs, education, and citizens' rights. This same phenomenon-pointing to the dangers to society from drug abuse as reasons to impose additional governmental regulation on citizens' lives and freedoms-has occurred in other countries, such as the United States and Canada.
The UN Drug Convention includes important provisions on money laundering, conspiracy, forfeiture, and related aspects of enforcement. The following points summarize the convention's provisions:
* Article 3 lists a series of offenses and requires member states to criminalize them. Parties must criminalize the production, preparation, transport, or delivery of any drug or narcotic substance contrary to the 1961 Convention; the laundering of money from drug crimes; and the acquisition or use of property derived from the foregoing offenses.
* Article 5 provides for the confiscation of proceeds or narcotic substances derived from the offenses established in Article 3.
* Articles 6 through 8 provide for broad mutual assistance. Article 6 provides for extradition. The signatory parties agree to include each offense listed in the UN Drug Convention in any extradition treaty existing and to be concluded between parties.
* Article 7 provides for mutual assistance, including taking evidence or statements from persons, serving judicial documents, or executing searches and seizures. A party cannot refuse to render legal assistance on the basis of bank secrecy.
* Article 8 obligates the signatory parties to consider transferring proceedings for criminal prosecution of offenses established by the convention to one another.
* Article 21 provides for new functions for the Commission on Narcotic Drugs of the Economic and Social Council of the UN to supervise implementation.
The accession of the EC to the convention does not signify that its provisions will apply in the 12 member states. As already mentioned, the EC does not have authority to enact rules of criminal law binding on the member states. Therefore, enacting regulations is not possible. However, a council directive could require member states to at least enact quasicriminal provisions and other sanctions implementing the convention. By acceding to the UN Drug Convention, however, the EC will demonstrate its intention to become involved directly in the fight against drug abuse in Europe and its will to be more than just a public debating forum.
The effects of cooperation against drug trafficking will be profound. Criminal cooperation will be greatly enhanced. Extradition and especially mutual assistance in investigating and prosecuting drug cases will improve considerably. Directives and regulations promulgated by the EC to implement the Parliament's recommendations will apply across the community.
For instance, on February 20, 1989, the EC's Council of Foreign Ministers adopted a binding regulation on the export of eight so-called precursor substances that can be used to manufacture chemical weapons. The same type of regulations will be adopted on the export of precursor substances that can be used in illicit narcotics trafficking and manufacturing psychotropic drugs. (23)
In addition, as customs officials are required to increase control and detection of goods that may carry narcotics, harsher penalties will be imposed on persons engaged in illicit trafficking. Consumers of illicit narcotics will increasingly experience criminal problems when they cross borders and find themselves also subject to forfeiture and financial penalties even though they are in a foreign country.
In foreign policy, the EC's ability to support crop substitution programs in supplier countries, trade preferences for supplier countries, and various programs to influence supply and demand of illicit drugs will have an increasing impact on international narcotics policy. The EC's influence stems from both its economic importance and its dominant political role, such as at the G-7 Summits. It is also very influential in other organizations such as Interpol and the UN Fund for Drug Abuse Control.
Other countries have begun to follow the EC's lead. Most notably, the US Congress enacted legislation in December 1989 urging the president to provide economic assistance for crop substitution and coordinate US trade with its narcotics policy. However, until now the United States has not fully followed the EC lead on linking antinarcotics policy to trade preferences for supplier countries. The most concrete commitment to coordinate drug and economic policies was made by President Bus in February 1990 at the An Summit.
An important effect of European cooperation against illicit narcotics trafficking and psychotropic substances will be the adoption of uniform laws in EC and COE member states. These laws will establish new criminal offenses, such as money laundering, as well as new procedural laws, such as in the identifying. freezing, seizing, and forfeiting proceeds and instruments of crime based on Italian and UK model laws.
A European Committee of Experts under the auspices of the Pompidou Group is working on a convention regarding International Cooperation in Respect of Search, Seizure, and Confiscation of Proceeds of Crime. The convention will require signatories to enforce each other's confiscation orders and also to initiate confiscation actions of their own. Another development in European cooperation is that EC member states will make sentences for certain offenses uniform. Together the uniform laws will bring some profound changes in criminal practice.
Eventually, the EC is likely to adopt measures that common carriers must adopt or face penalties. At present, however, the absence of these measures contrasts with the harsh "Super-carrier Initiative" of the United States. Those regulations require carriers to spend enormous resources to secure a carrier and its employees from illicit drugs. Violations result in forfeiture of vessels and severe fines.
For instance, when it found three containers of marijuana on board the Evergreen in April 1987, the US Customs Service imposed a fine of over $59 million against the vessel for crime cooperation. After several petitions and considerable work by attorneys, the entire penalty was remitted. Most vessels have not been so fortunate, however.
The easier regulatory regime in the EC enables its carriers to operate more economically in regional and world markets. From a business planning perspective, carriers are wise to arrange their operations to be subject only to the EC regime. Practically, this may mean avoiding US ports unless the cargo is significant.
Enforcement cooperation against trafficking by air has resulted in an independent cooperation group to exchange intelligence and promote cooperation. Many EC governments have agreed to exchange information on passenger lists. However, objections by Lufthansa have blocked a more formal agreement.
One of the most important areas in which EC drug policy will be felt is in international politics. Some global interactions are initiated and sustained entirely or almost entirely by governments of nation states. Other interactions, such as narcotics deals, laundering narcotics proceeds, or other illicit international transactions, involve both governmental and intergovernmental actions. To combat international narcotics trafficking successfully is to view the law enforcement community as an actor in a world politics paradigm and contrast it with a state-centric paradigm; (24) that is, to confer on intergovernmental organizations increased roles in relation to those of the nation-state.
To the extent the EC is unable to decide whose jurisdiction it should be to ban the export of precursor drugs or require common carriers or financial institutions to police their enterprises effectively, organized criminals will exploit such gaps to achieve their goals, and legitimate business can occur with less regulation and cost. The decision of the EC to sign and participate in the implementation of the UN Drug Convention signals its determination to view the drug policy in the context of world politics.
The sophistication of many of the EC member countries and its experts and their memberships in many important international nongovernmental organizations (INGOs), such as the Association International de Droit Penal, will help them involve INGOs and facilitate the establishment and development of long-term alliances in the law enforcement community, such as an elite network that leads to dynamic integration growth. (25) About the Authors. . Bruce Zagaris is a member of the California and District of Columbia bars, a partner at Berliner & Maloney in Washington, DC, and editor of the International Enforcement Law Reporter. Ange-Francois Fantauzzi has a law degree, a certificate in Criminal Science, an LLM in international trade and finance, and is an intern with the International Enforcement Law Reporter. (1) See, for example, on the emergence of a "unified Mafia" in Europe, Karen Wohman, "Europe's Cocaine Boom Confounds Anti-drug War," The Chiristian Science Monitor, June 19, 1989. (2) European Parliament, Committee of Inquiry into the Drug Problem in the Member States of the Community, Report on the Result of the Inquiry, September 1986. (3) For discussion of a possible European criminal law regime, see Von den Wyngaert, "Criminal Law and the European Communities: Defining the Issues," Transnational Aspects of Criminal Procedure, p. 247 (1983); Bridge, The European Communities and the Criminal Law, Criminal L.R. (1976); Harding, The European Communities and the control of Criminal Business Activities, 31 C.L.Q. 246 (1982). (4) The Hague European Council, Bull. EC6 1986. (5) Bull. EC 6 1986. (6) The Fight Against Drugs in the Community, Bull. EC 11 1986. (7) Bull. EC 11 1986, points 1, 2, and 3. (8) Report of the European Parliament (see footnote 2). (9) Report of the European Parliament, points 7 and 9. (10) Report of the European Parliament, point 4. (11) Report of the European Parliament, point 17. (12) Report of the European Parliament, point 18. (13) Report of the European Parliament, Section V. (14) For background on the Trevi Group, see Muller-Rappard, The European Response to International Terrorism.. in Bassiouni ed.), Legal Responses to International Terrorism: Procedural Aspects, pp. 385, 410-411 1988). (15) For background on the meeting, see Justice: Informal Meeting of EEC Ministers on May 26, European Report, Institutions and Policy Coordination, p. 2 (May 24, 1989, No. 1498); and Justice: Time Not Ripe for a European Justice Policy, European Report (May 31, 1989, No. 1500). (16) Statute of the Council of Europe, Article 1. (17) Statute of the Council of Europe. (18) Statute of the Council of Europe. (19)"Exchange of Letters Between the Council of Europe and the European Community Concerning the Consolidation and Intensification of Cooperation," Official Journal of the European Communities, No. L273135. (20) Commission of the European Communities, Commission Communication to the Council on Relations between the Community and the Council of Europe, COM (89) p. 24 (March 8, 1989). (21) Proposal for a Council Decision of the United Nations Convention Against Illicit Traffic in Narcotic and Psychotropic Substances, concluded in Vienna on December 20, 1988, COM (89), p. 26, January 26, 1989. (22) United States Convention Against Illicit Drug Traffic in Narcotic Drugs and Psychotropic Substances, done in Vienna on December 20, 1988, (E/Conf. 82/15). 28 I.L.M. 493 (1989). (23) For a discussion of the regulation on the export of precursor substances that can be used in the manufacture of chemical weapons, see European Community Adopts Regulations on Exporting Precursors, 5 Int'l Enforcemnt Law Rptr. 150 (Apr. 1989); Chemical Weapons: EEC Foreign Ministers Adopt Precursors Regulation, European Report No, 14/4 External Relations), p. 3, February 22, 1989. (24) See, for example, R. O. Keohane and J. O. Nye, Power and Independence, pp. 3-5 (1977), in which the authors explain that many scholars see the territorial state being eclipsed by international actors such as multinational corporations, transnational social movements, and international organizations; and Nye and Keohane, "Transnational Relations and World Politics: An Introduction," in R. O. Keohane and J.S. Nye (eds.), Transnational Relations and World Politics Vol. XII (1981). (25) See Feld and Jordan, International Organizations: A Comparative Approach, pp. 3-4; for a discussion of the dynamic effect of integration, see Zagaris, The Economic Community of West African States (ECOWAS): Analysis and Prospects, 10 Case West. Reserve J. of Int'l L. 93, 102 (1978); Zagaris, The Rising Utility of the Public International Corporation, 6 Denver J. Int'l L. & Pol'y 43, 48 (1974); Zagaris, The Economic System of Latin America (SELA): An Innovative Mechanism for Less Developed Countries, 2 Comparative L. Ybk. 117, 132-33 (1978).
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|Title Annotation:||European Economic Community's battle against drug trafficking|
|Author:||Zagaris, Bruce; Fantauzzi, Ange-Francois|
|Date:||Jun 1, 1990|
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