The chapter will provide a comprehensive typology of norm-making in transnational criminal law, by focusing on both the adoption of norms at the global level and on issues of implementation and compliance. The chapter will look in particular at how the making of global standards in transnational criminal law has shifted from traditional forms of international law-making – namely multilateral international treaties – to other forms of governance including regionalism, ‘soft’ or ‘informal’ law and ‘global administrative law’. The interaction and inter-relationship between these forms of governance in the development of a multi-level paradigm of global governance of transnational crime will be highlighted and the implications of this paradigm on justice and the rule of law will be explored. Questions on justice will focus on issues of inter-state justice, but also on the impact of transnational criminal law on domestic criminal justice systems. A number of parallel and innovative processes of internationalisation and globalisation will be highlighted in this context and their impact on law-making in a complex global arena will be explored.
Extraterritorial immigration control has been increasingly used by states aiming to deflect and prevent flows of migrants and asylum seekers towards their territory. The growing securitisation of migration and asylum flows has led to the proliferation of mechanisms of extraterritorial immigration control, with new responses devised in times of perceived crisis. By focusing primarily on European responses, the aim of this chapter is to offer a typology of mechanisms of extraterritorial immigration control and to map their evolution, taking in particular into account new responses prompted by the emergence in the global securitisation agenda of the fight against human smuggling as a primary security threat. The chapter will begin by an analysis of extraterritorial immigration control by states, as complemented in the case of the EU by the activities of FRONTEX. It will focus on two aspects of extraterritorial immigration control closely linked with the fight against human smuggling: the privatisation of extraterritorial immigration control by criminalising and policing humanitarianism, and the militarisation of extraterritorial immigration control with endeavours such as Operation Sophia. The chapter will place these developments within a multi-layered, interconnected framework of extraterritorial immigration control which extends to cooperative arrangements between the EU and its Member States on the one hand and third countries on the other. The chapter will demonstrate that the many levels of extraterritorial immigration control represent an emerging paradigm of preventive justice, by focusing on the prevention of entry of migrants and refugees in the territory and its Member States. The chapter will also demonstrate how, in this paradigm of preventive justice, the rule of law is undermined.
The chapter examines the relationship between mutual recognition, mutual trust and fundamental rights in European criminal law. By focusing in particular on the operation of the Framework Decision on the European Arrest Warrant, the chapter examines the way in which fundamental rights concerns are dealt with by secondary EU law (fundamental rights as grounds of refusal to recognise and execute a judicial decision) as well as by the Court of Justice of the European Union (examining the evolution of the Court’s case law to include recent rulings in Radu, Melloni and Opinion 2/13). A key focus in this context is the extent to which fundamental rights concerns should be examined and serve as limits to mutual recognition and the extent to which the European Union can proactively promote fundamental rights in order to ensure the effective operation of the mutual recognition system.
The evolution of the UK position has been marked by a tension between the objective of maintaining sovereignty in the sensitive field of criminal law, while at the same time promoting at EU level a strong security agenda based on maximising judicial and law enforcement co-operation. This tension between sovereignty and security has led to a complex legal and constitutional landscape concerning the UK participation in Europe’s area of criminal justice where on the one hand the UK has been pushing for further integration in the field of law enforcement and security cooperation, while on the other hand it has maintained its ‘a la carte’ approach on European integration in the field especially in areas where it is feared that CJEU rulings may have an undue influence on the domestic criminal justice system. This chapter will explore the future EU-UK security cooperation by first analysing the previous status quo in three key areas of security cooperation and then focusing on the possible legal options for future cooperation. It argues that Brexit will bring the UK in the paradoxical position of having to accept more EU law than it previously had to as an EU member state.
Valsamis Mitsilegas and Niovi Vavoula
This chapter examines key privacy concerns raised by the establishment and operation of EU large-scale information systems (the Schengen Information System – SIS II, the Eurodac. the Visa Information System – VIS, and the Entry/Exit System – EES) as well as the EU PNR Directive. By dividing the chronology of the EU developments into three waves, it is argued that the current landscape in relation to the systematic collection, storage and further processing of personal data carries the characteristics of mass surveillance of movement through digital technologies. This surveillance of mobility, which is focused on prevention, has become the normal and logical response to future threats disregarding the high standards of privacy protection as advanced by the EU Court of Justice.
Valsamis Mitsilegas, Saskia Hufnagel and Anton Moiseienko
In an increasingly mobile and interconnected world, transnational crime – that is, crime that directly affects more than one country – is more prevalent than ever before. Against this background, transnational crime has become increasingly difficult to study, let alone counteract. Given its sheer diversity, the whole utility of thinking about transnational crime as a field of enquiry may appear questionable. Yet by focusing too closely on specialist areas of concern one risks missing the proverbial wood for the trees – that is, factors common to various strands of transnational crime and the shared challenges of addressing it. The objective of this Handbook is to serve as a guide for the exploration of major types of transnational crime and key geographical regions.