During the last decades, globalisation has taken place in crime as in all the others sectors of the economy. Moreover, the abolition of internal borders controls makes the European Union (EU) particularly vulnerable to transnational crime. For these reasons, issues such as cross-border cooperation between law enforcement agencies and intelligence and information sharing with third countries or regional/international organisations have been gaining prominence in the EU debate.

These issues were analysed in one of the many panels constituting the conference “EU and emerging powers 2015”, whose theme this year was “Cooperation and competition in knowledge and technology”. This conference was organised by Université Libre de Bruxelles, Université Saint-Louis, Universiteit Gent, KU Leuven, Université Catholique de Louvain, Université de Liège, and Madariaga Foundation and took place on 28-29 April 2015 at the European Economic and Social Committee.
The panel hosted the interventions of two researchers of the Université Libre de Bruxelles, namely Chloé Florence Brière and Céline Cocq, whose works focused respectively on Europol’s cooperation with third counties and on intelligence and information sharing in ASEAN. The interventions were later discussed by Richard Aldrich (University of Warwik).

Cooperation in the fight against serious transnational crime: Europol’s expertise and cooperation with third countries

The first research, presented by Chloé Florence Brière, discussed cooperation in the fights against serious transnational crime, and in particular Europol’s expertise and cooperation with third countries on the matter.

Europol is the European Union’s law enforcement agency, whose aim is to assist the Member States in the fight against international crime and terrorism.
The creation of Europol was the outcome of a long-standing debate about cooperation among European police forces which started in the 1970 in the context of the so-called “Trevi Group” (which gathered the European Community’s interior and justice ministers). A step forward was taken by the Maastricht Treaty (1992), which made justice and home affairs one of the three pillars of the newly established European Union and envisage police cooperation among Member States at article K1(9). Europol was officially set up by a Convention in 1995, which, after ratification by the Member States came into force on 1 October 1998. Europol became fully operational in 1999. Finally, in 2010, Europol formally became an EU agency, under the direction of Rob Wainwright.
As for its mandate, Europol has no direct power of arrest, but is supports EU law enforcement agencies by gathering, analysing and disseminating information and by coordinating operations. The main area in which Europol works are, among others, drug trafficking, illicit migration and trafficking in human beings, cybercrime, money laundering and euro counterfeiting.

The starting point of the paper presented was that cross-border police cooperation becomes more and more urgent in a context in which globalization provides more and opportunities for criminals – that is, the reason that led the EU to set up Europol.
The aim of the paper was to assess the contribution of Europol to cross-border police cooperation. This was done by taking into consideration the legal framework and the competences conferred to Europol, as well as the tools it can rely on.
As for the legal basis, Europol started as a convention (1995) under international law regime and was progressively brought into the EU legal framework (Council decision, 2009): at present, the Council and the European Parliament are negotiating a new legal framework in the form of a regulation.
Europol’s missions are strictly defined and consist, one the one hand, in the coordination of law enforcement authorities and the support of their operational activities and, on the other hand, in the collection, storage and analysis of data. This can take place in two ways, namely strategic or operational analysis. In strategic analysis, the idea is to help policy makers to make long-term operational plans by identifying and assessing criminal threats that are present in the EU. Threats assessments can concern serious and organised crime, terrorism, and internet organised crime. Instead, in operational analysis, the aim is to assist the authorities involved in one specific case, with a short or medium-term perspective.
The technological tools developed by Europol include the Secure Information Exchange Network Application (SIENA) (a system for the exchange of crime-related information and intelligence), the Europol Information System (EIS) (used to verify whether information on a person or object of interest is available), and the Europol Analysis System (an operational information system focusing on specific crime-areas).

Secondly, Brière’s intervention focused on Europol’s cooperation with third parties, namely international organisations and third countries.
Overall, the current sui-generis legal framework sees a major role played by the Council of the European Union, even though the future legal framework might involve to a greater extent the European Parliament. However, a constant element seems to be the importance granted to compliance of third parties with EU data protection standards.
More specifically, there are two different agreements that Europol can conclude with third parties, namely strategic cooperation agreements and agreements on strategic and operational cooperation. Strategic cooperation agreements (concluded with Bosnia-Herzegovina, Moldova, Russia, Turkey, Montenegro, Ukraine the World Customs Organisation, and the United Nations Office on Drugs and Crime) represent the most basic form of cooperation in which the parties can exchange general data, but not personal data. In agreements on strategic and operational cooperation (concluded with Albania, Australia, Canada, Colombia, FYROM, Iceland, Liechtenstein, Norway, Serbia, Switzerland, Monaco, USA, and Interpol), the transmission and receipt of personal data is allowed.
Overall, the panelist concluded that Interpol’s focus in cooperation with third countries was on neighbouring countries (with which the EU as a special relationship, as they are included in the European Neighbourhood Policy) and on strategic partners such as the United States and Canada.

The last part of Brière’s intervention dealt with Europol’s cooperation with emerging countries and was based on two case studies, namely China and Brazil, which are important for three main reasons. First, Brazil is a country of origin for many victims of human trafficking and China is a major source of counterfeit consumer goods. Second, organised criminal groups from these countries are active in the EU’s territory. Third, insofar they are emerging economies, they represent new criminal markets for organised criminal groups.
As far as emerging powers are concerned, Chloé Florence Brière concluded that cases of organised criminal activities with cross-border elements connected to these countries are likely to become more frequent in the future (for instance, the trafficking of stolen cultural goods). For this reason, cross-border police cooperation is crucial.
However, cooperation between these countries and Europol is rather disappointing: no cooperation agreements are in place, and no negotiations are ongoing. Nonetheless, other channels of cooperation exist, such as the definition of common objectives, bilateral cooperation with some EU Member States (though bilateral or multilateral agreements), cooperation through Interpol.

In sum, the author concluded that, in the years, Europol has developed an external policy of its own, characterised by the importance granted to compliance with data protection standards. Moreover, a strong political will exist to foster international police cooperation in order counter the globalisation of crime. However, there are risks of overlaps and duplication of efforts. In her view, given the current absence of an effective cooperation between Europol and emerging powers such as China and India, cooperation through Interpol can be regarded as a reasonable choice.

Finally, some interesting points were raised during the Q&A session. First, about the reasons why the EU decided to put such emphasis on intelligence sharing, Brière answered that the 9/11 attacks acted as a catalyst factor. However, some informal exchanges on the matter (namely in the framework of the Trevi group) can be identified already in the 1970s. Secondly, on the relationship between Europol and the issue of human rights, the panelist pointed out that, as a newly established agency, Europol is bound by a number of rules concerning the protection of human rights, such as the EU Charter of Fundamental Rights. Finally, asked about the prospects of the creation of an EU intelligence agency, Brière commented that national authorities still remain the masters of information. Indeed, even in the context of Europol, a member State has the right to refuse to transfer information to another member State. As a result, in her view it is not yet possible to envisage the creation of an EU intelligence agency.

Intelligence and information sharing in combating serious transnational crime in ASEAN

The case of ASEAN was analysed by Céline Cocq, who paid attention to the growing role of intelligence and information sharing in a digital era with a constant exchange of information through the internet. According to her, this context poses many challenges regarding data protection, privacy and human rights, since it gives an opportunity to criminals to carry out and spread their actions beyond national borders. Taking this into account, her speech focused on the current intelligence and information sharing between ASEAN countries, always looking at their relationship with the European Union to answer a fundamental question: does a legal fertile ground exist in ASEAN to facilitate intelligence and information sharing in combating serious transnational crime?

The Association of Southeast Asian Nations (ASEAN) was established in 1967 by Indonesia, Malaysia, Philippines, Singapore and Thailand. Since then, five more members joined, namely Brunei, Vietnam, Laos, Myanmar, and Cambodia.
The aims of ASEAN are to foster the economic, social, and cultural development of the Southeastern Asian region, to promote regional peace and stability, and to promote cooperation among the member States in a wide range of domains (economic, social, cultural, technical, scientific, and administrative). ASEAN is based on some key principles, namely mutual respect, sovereignty, non-interference and self-determination, peaceful settlement of disputes, and cooperation.
In 2009, ASEAN established an Intergovernmental Commission on Human Rights. In 2012, this body drafted an ASEAN Human Rights Declaration, that was later adopted by the member States.

Cocq’s research drew first on a top-down analysis of the impact of international law and norms on ASEAN and the developments in the ASEAN security framework. Cocq focused on several factors to explain the challenges that ASEAN cooperation faces, namely cultural challenges, different and narrow approaches on national sovereignty, legal frameworks and divergent definitions between ASEAN countries on several concepts, such as information sharing and intelligence. In this first part, Cocq also paid attention to the institutional framework of ASEAN. Secondly, the paper drew on a bottom-up analysis which characterises the Asian way, namely the ASEAN decision-making process. In this context, Cocq assessed national legal initiatives (namely in Singapore, Malaysia and Indonesia) regarding data protection, as well as the performance and nature of multilateral and bilateral agreements between ASEAN countries to tackle terrorism, organised crime and promote information sharing. Finally, Cocq examined the future of a virtual common intelligence and information mechanism.

In her top-down analysis, Cocq found out that ASEAN countries have a very narrow interpretation in transnational crime and information sharing due to their protection of national sovereignty and the non-interference principle. The different legal frameworks and the lack of trust pose several problems to find common ground for joint action. These dynamics can also be seen in ASEAN’s consensual decision-making mode, which fosters a more bottom-up than a top-down approach to adopt regional norms. Cocq also highlighted that ASEAN actions are affected by a lack of agreement to find common definitions, and that up to date only insufficient instruments and weak institutions exist at ASEAN level to tackle terrorism and transnational criminal matters. Finally, she noted that, even if ASEAN is institutionalising criminal matters and going from praxis-based rules to legal-based ones, it lacks a comprehensive approach and binding instruments to ensure data protection and fundamental rights. In her bottom-up analysis, Cocq noted that, since 9/11, several mechanisms to tackle terrorism and organised crime at a state level have emerged. In parallel, even if some multilateral and bilateral agreements on information exchange have been signed, they lack clear goals and a comprehensive approach. Recently, even if some states have developed laws on data protection, these have a very limited scope. From all this stems that ASEAN policies in intelligence and information sharing have been until now developed with the lowest common denominator. To end with, Cocq foresaw that a common mechanism in intelligence and information sharing to tackle transnational crime in ASEAN is, rather than a dream, a long-term prospect.

After the researchers’ interventions, Richard Aldrich (University of Warwick) discussed some of the issues raised during the panelists’ speeches.
To begin with, Richard Aldrich highlighted a paradox concerning EU cooperation with third countries in the field of criminal matters, namely the fact that the countries which the EU needs to cooperate with are those countries which are themselves sources of transnational crime and whose mechanisms to fight transnational crime are highly problematic in terms of human rights. Secondly, he commented about the evolution of intelligence in the 21st century. As he underlined, whereas intelligence was traditionally about States, nowadays it is mostly about people, which makes the privacy issue of crucial importance. However, the legal definitions of privacy differ significantly among the various countries, such as for example between the EU and the US. Thirdly, he noted that, whereas intelligence sharing works well when it is bilateral, it is much more difficult to make it work in a multilateral framework.
Regarding the theoretical frameworks that can be used to analyse the issue of intelligence sharing, Aldrich cited realism, idealism and liberal institutionalism. According to a realist perspective, intelligence sharing is merely about trading information: therefore, it is possible to share intelligence with anyone. Conversely, in an idealist framework, intelligence sharing takes place among countries which share similar ideologies and governments. According to liberal institutionalists, institutions over the years grow a habit of collaboration on the matter.
Finally, the discussant stated that, although information sharing on transnational crime is difficult, it will nevertheless increase for two main reasons: 1) it concerns low politics (specific cases, people and groups) and it is therefore quite disconnected to national policies, and 2) transnational crime is expanding as a result of globalisation.

Implications for legal cooperation of the transfer of knowledge between the EU and emerging powers

Globalisation is bringing to the fore a new digital era with growing opportunities to exchange information and data through the internet. These opportunities have also been used by criminal groups, what has made the need for more transnational and intraregional cooperation an urgent issue in the international agenda. The 9/11 attacks pushed for a more integrated and comprehensive information sharing between countries with wide implications.
First, information and legal cooperation between countries has fostered the creation of specialised agencies such as Europol in the EU and Interpol at an international level, as well as ASEANPOL in South-East Asia. Moreover, this new institutional constellation has developed a complex intertwining of mutual cooperation: on the one hand, Europol has fostered cooperation with third countries such as Russia, Canada, the USA and Turkey, among other countries, as well as with international and regional organisations such as Interpol or the World Customs Union; on the other, ASEAN cooperates with Interpol. Despite these developments, further cooperation between the EU and the emerging powers is needed (as pointed out by Brière, no agreements exist), since these countries are a potential source of threats. In this framework, Europol has already developed a series of legal tools to foster cooperation, such as strategic cooperation agreements and agreements on strategic and operational cooperation, which have allowed it to develop its own external policy.

Moreover, as a result of the easier access to information and of the evolution in the nature of contemporary intelligence, as highlighted by Richard Aldrich, the privacy issue becomes key. Indeed, the institutional development in Europe has had a spill-over effect and thus allowed the development of data protection standards. Also, the difference between foreign intelligence and domestic intelligence has become more blurred. These developments have questioned the very basis of intelligence’s definition.
Even if we have not seen the same trends in ASEAN, it is true that since ten years ASEAN has evolved from a praxis-based way of functioning to a more legal-based modus operandi. This subtle change has been accompanied by recent developments of laws on data protection at the national level, though with a very narrow scope.

Challenges arising from legal cooperation

By bringing together the several interventions of the conference, a number of common problems and challenges regarding cooperation in the field of civil and penal issues can be drafted.

First of all, international legal cooperation on transnational crime can be hampered by diverging definitions in the issues concerned stemming from cultural and legal differences between countries. For instance, as the ASEAN case shows, an absence of common definitions in essential concepts such as transnational crime and terrorism can pose challenges to cooperation. In addition, the conceptual overlap between information sharing and intelligence or the absence of an agreed definition of right to privacy and data protection poses several problems to human rights protection. This conceptual chaos goes beyond the realm of language: the multilateral agreements signed between ASEAN countries state that information has to be shared, but nothing is said about the approach, framework, channel and the use and aims of this information. However, it must be noted that diverging, incomplete or lacking definitions also exist at the international level and between the USA and the EU. At a national level, though some ASEAN countries have adopted laws on data protection, they do not deal with criminal or security matters.
As noted by the researchers, these divergences stem from a narrow approach in terms of national sovereignty. In general, some countries have very protective interpretations on transnational crime and are reluctant to share their information. Unavoidably, this leads to duplicated efforts and a risk of overlap.

As previously said, whilst in Europe intelligence and data sharing has been linked to the development of instruments to protect human rights and privacy, such as the European Charter of Fundamental Rights, this still poses problems in other parts of the World. Even if in some cases some instruments have been agreed upon, their scope is very limited or their legal nature is weak. For instance, the ASEAN Intergovernmental Commission on Human Rights has been assessed to have a very soft approach to human rights, and the two legal binding norms on terrorism and criminal matters agreed between ASEAN countries are still too weak. Also, as Cocq remarked, ASEAN countries see their instruments as working, what limits them to further develop them.

Finally, as mentioned before, the lack of cooperation between countries poses several challenges. For example, it emerged from both interventions that no agreements exist between Europol and ASEAN. This is especially problematic for the EU, because criminal networks have become global and, even if operating in emerging powers, they can be active in EU’s territory too. By looking closer at ASEANPOL, it can be seen that it is not the proper instrument to tackle transnational crime, since it remains a mere taskforce not comparable to its European or international counterparts.

Giulia Bonacquisti and Gerard Bros Perez

 

Pour en savoir plus:

– Conference programme (EN) : http://www2.usaintlouis.be/public/iee/programme_euandep.pdf
– Europol website : https://www.europol.europa.eu/
– ASEAN website : http://www.asean.org/