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AG Discusses Law Enforcement
Published 12th September 2007, 1:50pm
Address to the CPA - June 2007
Attorney General, the Hon. Samuel Bulgin, Q.C., J.P.
Law Enforcement and Interdiction - Regional Co-operation
Ladies and Gentlemen, I have been invited to provide this distinguished gathering with some remarks on the issue of Law Enforcement and Interdiction from the perspective of Regional Cooperation, and it is certainly my pleasure to do so.
The principle of regional and international co-operation has been accepted by our countries as fundamental to the growth and development of an individual territory as well as the region as a whole; accordingly, whether in respect of culture, economics, sports, education or other framework, the advantages of partnership are readily apparent. In the field of law enforcement and interdiction they are no less so. Therefore, while historically this was seen as the purview of the national Courts and individual jurisdictions, it was quickly recognized that criminals know no borders. Research has shown that in terms of cooperation, the earliest attempts to provide assistance to foreign law enforcement authorities was by way of extradition treaties, one of which was signed as far back as 1844 between France and the Netherlands and which also spoke about the obtaining of evidence.
Of equal significance in this context is the fact that in 1959, the European Convention on Mutual Legal Assistance in Criminal Matters was agreed in Strasbourg. This is described as one of the first major agreements on mutual assistance, the aim of which was to ensure that States afforded each other the widest possible means of co-operation. Since then, this theme of wide co-operation has been repeated throughout such international and regional agreements.
Gradually the means and extent of assistance evolved in response to the need for more effective and practical assistance between countries, and so assistance between countries is no longer what I would describe as "passive paper assistance" within national borders. The need for robust, active and continuing assistance is now fully accepted.
A further significant development in the area of international co-operation and mutual assistance is that in 1988 the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was adopted in Vienna. The Parties to the Convention expressed their deep concern at the steadily increasing inroads into various social groups made by the illicit traffic in narcotic drugs. They quickly recognized that such traffic is an international criminal activity, the suppression of which demanded highest priority and that the eradication of this traffic is the collective responsibility of all States. The coordinated action within the framework of international co-operation is therefore of immense necessity.
In addition to the usual extradition and mutual legal assistance, the Convention also provides for other forms of co-operation. It stipulates that in appropriate cases and if not contrary to domestic law, the parties should establish joint teams to co-operate in conducting inquiries relating to the movement of the proceeds of drugs and instrumentalities.
It further allows Parties to conclude bilateral and multilateral agreements or arrangements to enhance the effectiveness of international cooperation.
Indeed it requires each Party to take legislative measures to ensure that it has jurisdiction in respect of such offences extending to vessels bearing its flag or registered in its State. By extension, a Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registration is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. In support of this, flag States may therefore authorize requesting States to board and search their vessels.
Adherence to this Convention has determined the basic models for our local drug enforcement legislation and is still a standard for law enforcement co-operation across borders. For our part, the Cayman Islands gave effect to the Convention by its Misuse of Drugs Law which provides the legislative underpinning for law enforcement action such as stopping, boarding, diverting and detaining ships of other Convention countries and which are engaged in illegal drug trafficking.
In order to further strengthen our ability for "functional co-operation", the Cayman Islands has also embraced the Shiprider Agreement as part of our domestic legislation. This Agreement, inter alia, enables U.S. and Cayman law enforcement teams to work together in Cayman's territorial waters to combat drug trafficking involving the shipment of drugs usually from South America and elsewhere into the United States.
This Agreement - which was not without its fair share of controversy because, amongst other things, it provided for overflights, shipboarding and of course, shipriding - was eventually embraced by just about most regional countries. This willingness by the region to coalesce measures to combat trafficking in narcotics, even in the face of mounting criticisms by some of our people, especially as it relates to the question of sovereignty, is tangible demonstration of our resolve to partner each other to fight this scourge of using our maritime waters for drug trafficking. Indeed, statistics have confirmed that in a given year an average of over 100 tonnes of cocaine and marijuana have been moved through the territorial waters between South America and the Caribbean en route to the U.S.A.
On a regional level we have been developing our own systems and processes including those necessary for determining and refining the effectiveness of our mutual assistance pathways. This very important framework of regional law enforcement/interdiction is supported by several pillars of which perhaps one of the most important is that of mutual co-operation, not just between regional partners but also hemispheric, including the Caribbean and the Americas
Some have suggested that perhaps the most useful starting point from which to examine any regional initiative, including law enforcement is with the Treaty of Chaguramas of July 1973 which is the modern genesis of the Caribbean Community and Common Market (Caricom).
It was out of this ongoing desire for member countries in the region to move "lock step" that the idea to deepen and enhance the region's security gained momentum.
Indeed, after several discussions, attempts and vacillating, the Caricom community in 1997 promulgated the Bridgetown Declaration, or the Barbados Plan of Action as it is commonly referred to.
The Plan has as one of is central aims the issue of justice and security. In fact, the Plan expressly recognized the inextricable link between a stable and prosperous economy and the rule of Law.
It was in that context that Caricom formally expressed its concern with the growing strength and capabilities of transnational criminal organizations and the deleterious effects these could or would have on the economic and democratic systems of member countries.
From that recognition grew a resolve amongst regional partners to collaborate in combating transnational organized crime including the scourge of illegal drug and firearms trafficking. Of great significance is the fact that the Bridgetown Declaration was also signed by the then United States President, William (Bill) Clinton, evidencing the partnership and support of the United States in providing technical assistance and training to the Parties to the accord.
The Plan in general deals with a number of broad areas with specific sub-groups detailing the actions required and agreed. In the area of Justice and Security and by extension, law enforcement, countries have pledged, inter alia, to encourage transnational law enforcement co-operation and to promote multi-agency collaboration, on a domestic as well as regional level.
In the area of arms control, there were pledges for, among other things, the identification of a national point of contact in each country, including law enforcement officials to deal with firearm trace requests, investigative assistance and law enforcement intelligence.
It is worth bearing in mind that for any sustainable assault on criminal activity and transnational crime to be effective, we must be able to successfully prosecute the perpetrators, and that a necessary underpinning of this effort is the availability and willingness of potential witnesses and other participants in the criminal justice system. It was therefore no surprise to anyone that the Barbados Plan of Action contemplated and embraced a Witness Protection Programme.
To compliment this initiative, the Plan also speaks to the recognition by the parties of the need for greater co-operation between security forces in the region to deal with illegal arms trafficking and other destabilizing threats. Not surprisingly, the parties readily appreciated that no one nation could deal effectively with these threats. The above recognition propelled the regional parties to the Plan to commit to a Regional Security System ("RSS") and to permit member countries to bring in Forces to assist one another as needed. Mindful of the prevailing global position and that criminal activities transcend territorial boundaries, the regional parties also agreed to work together to strengthen maritime interdiction, thereby enhancing the ability of member States to cooperate in maritime law enforcement.
In more recent times, the issues of money laundering and the financing of terrorism as well as acts of terrorism have taken on increasing significance globally and therefore regionally. It is clear from reading the Bridgetown Declaration that the architects thereto were visionaries. It was this vision that readily informed the inclusion of terrorism and money laundering in the Plan. Given recent media reports we do not have to look very far to see why as a region we have an unrelenting obligation to pay due attention to these phenomena.
I dare say, the imperative to pay close attention to what is happening, particularly in relation to alleged terrorist activities, is even greater when as a region we stop to consider the potential impact on one of the main pillars of our economy, namely, tourism. Indeed, according to one former Caribbean diplomat, if persons from this region were stupid enough to even hallucinate about getting involved in terrorist activities (such as the alleged JFK plot), Caribbean business and tourism could pay a huge price therefor.
A necessary off-shoot of the Bridgetown Declaration is the Regional Task Force on Crime and Security which is charged with the responsibility of examining the major causes of crime and recommending appropriate measures to combat issues such as illicit drugs and firearms as well as acts of terrorism.
One of the three areas of focus of the Task Force is the pursuit of multilateral initiatives for international security and capacity-building through institutional strengthening, shared surveillance and other forms of assistance. The report on the framework for the Task Force was underpinned by more than one hundred recommendations of Attorneys General and Ministers of the Region with responsibility for national security. The Task Force appreciated that security threats, concerns and other challenges in the hemispheric context are multi-dimensional in nature and scope and that its work, in order to be effective, must take account of this.
A recent development in this context is that in June 2005 CARICOM agreed to enter into a Mutual Legal Assistance Treaty on Serious Criminal Matters. The main purpose of the Treaty is to increase co-operation in mutual legal assistance among Caribbean countries in respect of criminal matters and to combat criminal activity. Approximately 10 countries have already signed the Treaty, which will eventually come into operation as soon as it has been ratified by at least five signatories. This will be a further important development in the area of regional co-operation.
Against this background, reflecting on what has been said so far, some of the relevant questions that might be asked are how far have we come, what progress have we made and what does the future hold for us as a region. Some important achievements over the last few decades include the launching of the Caribbean Customs Law Enforcement Council ("CCLEC"), headquartered in St. Lucia and which comprises membership from the Caribbean and Latin America as well as Canada, France, Spain, the United Kingdom, United States and Netherlands and having as one of its principal objectives the provision of co-operation in the prevention and interdiction of illicit drugs and other prohibited and restricted goods through the region. CCLEC's effort is part of a multi-agency collaborative approach with other agencies such as the police, Interpol, the Association of Caribbean Police Commissioners, the RSS as well as the UN Office of Drugs and Crime.
Other important achievements include the enhanced regional interdiction efforts buttressed by the Shiprider Agreement as well as similar bilateral and multi-lateral co-operation agreements. These efforts are being aided and strengthened by other initiatives such as training opportunities and typologies conducted by agencies such as our own Caribbean Financial Action Task Force and similar regional bodies.
Additionally, Member States and Associate Member countries such as the Cayman Islands continue to participate in numerous ongoing regional initiatives that cover mutual co-operation in law enforcement relating to the interdiction of traffic in narcotic drugs, immigration control, fisheries protection, natural emergencies, search and rescue, customs and excise control, pollution control, natural disasters, prevention of smuggling as well as combating threats to national security.
Perhaps the single most important achievement however, is the continued open channels of communication, and the dialogue and discussion which ensue.
And so, of significance going forward, is the need for ratification of the Caribbean Mutual Legal Assistance Treaty in Serious Criminal Matters by all Member States; further strengthening of regional criminal justice systems; the establishment of an effective criminal justice protection programme for vulnerable witnesses and of course, the strengthening of our regional security forces.
Ladies and gentlemen, if we can somehow manage to pull all these different strands together into one cohesive effort and be able to garner and maintain the political will, I am confident that the Caribbean region will continue to be recognized as one village where the only threats to our stability continue to be those caused by the decibel levels of some of our music boxes, the occasional over-application of our jerk sauce and the inconsistency in the West Indies batting.
Have a productive and enjoyable day.