An overview of the legal mechanisms adopted to combat transnational organised crime in the ambit of global trade governance

Abstract

The relationship between trade and crime is a long-standing one, yet significant developments in the past decades have seen illicit actors benefit from the liberalisation of global trade to expand their presence and further their activity in very much the same manner as lawful enterprises. The legal response to various forms of transnational crimes has been largely spurred by international, multilateral instruments, which however have to limit their normative potential to attain widespread acceptance and consequently remain dependant on domestic legislative and regulatory intervention to attain their objectives. The use of trading measures to suppress cross-border criminality is a common feature across a number of such international instruments, yet these often set broad objectives rather than prescribe harmonised regimes, bar some notable exceptions. In a similar manner, the concept of ‘global trade governance’ is as pluralist as ever, with a political retreat from the multilateralism embodied by the World Trade Organisation generating a surge of regional trade agreements. At this level, the legal intersection between trade promotion and the recognition of transnational crime as a threat to the goal of rules-based liberalisation is more readily apparent, with trade instruments effectively being instrumentalised to push for positive normative harmonisation. The multiplicity of obligations binding states risks generating fragmentation unless reconciled. One key consideration in this respect is the WTO, which along with its quasi-universal membership, has repeatedly affirmed that its legal order is to be regarded as setting the parameters wherein states may carry out their legislative and regulatory activity as it affects international trade. Consequently, states must balance their commitments to the multilateral trading system with their interests and obligations to prevent and suppress transnational crime. Disputes considered by the Organisation show how this is an extremely difficult process, particularly if domestic measures are unilateral in nature.