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UFRGS Model United Nations 2007
Commission on Crime Prevention and Criminal Justice
Dear Delegates,
It is with great joy that we welcome you all to the Commission on Crime
Prevention and Criminal Justice, one of the many innovations of the fifth edition of
UFRGS Model United Nations. During the simulation, you will have the opportunity to
engage in exhilarating, high level discussions, focusing your efforts on solving matters
related to the transnational organized crime.
Our agenda this year comprises two highly important issues which frequently
distress the international community. In Topic Area A delegates are invited to propose
measures to fight the trafficking in firearms, while in Topic Area B the core of the
matter is how to pose obstacles to the establishment of an inter connection between
financial havens and the transnational organized crime.
The Commission’s staff is composed by three students, all of whom are deeply
enthusiastic about international security issues. Ana Paula Ebeling is in her 8th semester
of International Relations at UFRGS and has already participated twice in the Model as
a delegate. In 2006 she decided to join UFRGSMUN’s staff, being one of the Assistant
Directors of UNCTAD. She also went to AMUN in its X edition as the representative of
the United Kingdom in the Historical Committee and in its VIII edition as the
representative of the Commonwealth of Australia in the Disarmament and International
Security Committee.
Igor Castellano da Silva is an International Relations student at UFRGS,
currently in his 6th semester. He participated in a model for the first time in 2006, as a
delegate in the Social, Humanitarian and Cultural Committee (SOCHUM), representing
the Syrian Arab Republic. Despite playing in the UFRGSMUN Band as a guest
drummer in 2006, only in 2007 he considered himself a real UFRGMUN staff member.
Tiago Estivallet Nunes is a 6th semester International Relations student at
UFRGS. He took part twice in the UFRGSMUN Security Council as a delegate,
representing Algeria and Tanzania, respectively, in the 3rd and 4th editions of the model.
Currently he is an assistantdirector at the Commission on Crime Prevention and
Criminal Justice in the UFRGSMUN 2007.
We hope you have an amazing experience here in Porto Alegre, making the most
of it by improving your debating and negotiating skills, getting to know new people and
learning more about the United Nations. It is very important to remind you that this
Study Guide is only a guideline. Therefore, we strongly recommend you to go further
and learn more about these two exciting issues, especially in what concerns the foreign
policy of your country. If you have any doubts, please do not hesitate to contact us!
Make sure to also join our egroup, [email protected].
Looking forward to meeting you!
Yours sincerely,
Ana Paula EbelingDirector
Igor Castellano da Silva Tiago Estivallet NunesAssistantDirector
AssistantDirector
INTRODUCTION
CCPCJ’s General Background
The Commission on Crime Prevention and Criminal Justice (CCPCJ) is one of
the nine functional commissions of the Economic and Social Council (ECOSOC). It
has as its main purpose to provide policy guidance to the United Nations in the areas of
transnational crime and justice, to develop, monitor and review the implementation of
the United Nations Crime Prevention and Criminal Justice Program and to facilitate and
coordinate the actions taken within the UN system in the field.1
The establishment of the Commission in 1992 was a result of the ever increasing
international dimensions of many criminal activities and the rising incidence of crime
worldwide. With the reformulation of the United Nations, the Committee on Crime
Prevention and Control, created in 1971, was dissolved and replaced by the CCPCJ
through General Assembly (GA) resolution 46/152.2
The Commission consists of 40 members, elected for three year terms by the
ECOSOC based on principles of equitable geographic distribution. The delegations are
composed, among others, by experts and senior officials with special training and
practical experience in crime prevention and control, so as to ensure that the actions
implemented by the CCPCJ effectively address the problems under its scope.
Working both as a functional research body and as a think tank of the UN, the
Commission focuses its efforts on combating national and transnational crime,
promoting the rule of law in protecting the environment, preventing crime in urban
areas and improving the efficiency and fairness of criminal justice administration
systems.3 Despite the lack of power to approve resolutions, in its annual sessions the
CCPCJ makes reports and draft resolutions based on what has been discussed during
each meeting. In a second moment, the drafts are submitted to the ECOSOC or the GA
for their approval, being eventually promulgated as regular resolutions.4
1 A/RES/46/152.2 A/RES/46/152.3 UNITED NATIONS OFFICE ON DRUGS AND CRIME Website. Available at: www.unodc.org/unodc/en/crime_cicp_commission.html. Last accessed: 18 May 2007.4 Considering the real functioning of the CCPCJ, delegates taking part in the simulation of the Commission during UFRGSMUN 2007 will be required to make and approve a draft resolution to be submitted to the ECOSOC in a posterior moment.
TOPIC AREA A
Measures to combat the trafficking in firearms
By Ana Paula Ebeling and Tiago Estivallet Nunes
“The world today is divided between those who live in fear of being
destroyed in nuclear war, and those who are dying day by day in wars
fought with conventional weapons”.
Oscar Arias Sánchez, Nobel Lecture, 11 December 1987
1. HISTORICAL BACKGROUND
Ever since World War II, humankind has observed the rise of manufacturing in
armaments worldwide. Even though the war was over, during the next four decades, also
known as the Cold War period, countries preserved their arms production at wartime
levels, creating a great weaponry surplus.5 At that time, superpowers would produce
topoftheline artillery for themselves and would give away secondhand equipment to
the then called Third World states, with the aim of gaining allies.6
With the closure of the Cold War period and its aftermath, the necessity of
countries to maintain stockpiles at such great levels decreased, since there was no major
threat to be feared any longer. Therefore, states eagerly began to sell their arsenals as an
extra source of income.7 As regional conflicts launched or aggravated by the Cold War
influence remained, the selling of firearms became a progressively profitable business
and, consequentially, many developing countries also started their own production of
small armaments so as to trade them.
Originally, transfers among Governments and commercial sales to individuals as
a means of selfdefense were the main ways by which firearms8 were traded. However,
5 MEEK, Sarah. Combating Armstrafficking: The Need for Integrated Approaches. Available at: www.iss.co.za/pubs/ASR/9No4/Meek.html. Last accessed: 18 January 2007.6 NAYLOR, R.T. The Rise of the Modern Arms Black Market and the Fall of SupplySide Control. In: GAMBA, Virginia (ed.). Society under siege: crime, violence and illegal weapons. South Africa: Institute for Security Studies, 1997, p. 48.7 MEEK, Sarah. Combating Armstrafficking…8 For the purpose of this Study Guide, delegates shall adopt the concept of “firearm” used in the Protocol against the Illicit Manufacturing of and Trafficking in Firearms: “Firearm” shall mean any portable
the struggle for influence within the outcome of innumerous conflicts all over the world
brought to the scenario freelancedealers and Government transfers to nonstate actors.
This was the case of the decolonization process of Africa, for example, where in an
attempt to increase their influence in the continent, opposing states fueled rebels and
insurgents with firearms, either to undermine their adversary’s power in the region or to
tackle the independency processes of the remaining colonies.9
Furthermore, both intra and inter state conflicts as well as high levels of internal
violence have been the major roots of trafficking in firearms in the African continent.
To make matters worse, after the conclusion of conflicts in the continent, arms tended –
and still tend – to be left behind by the groups involved in such hostilities, facilitating
the traffic of these weapons through the weak borders of African states.10 As a
consequence, nowadays these armaments are sold at a very low price, facilitating their
acquisition by the local population, and thus creating even more instability in the
region.11
Similarly, Central America still suffers with the illegal transfers of firearms that
remained from the Cold War period, despite all the programs of arms destruction12
carried out in the area.13 This is also the case of Asia, which was specially victimized by
the Afghanistan War and the weapons surplus the conflict created. Together with the
drug trafficking in the region, they are the main responsible for the traffic of
uncontrolled armament in South Asia.14 By its turn, Latin America as a whole fights this
problem with great difficulties, since the region is characterized by porous borders, high
demand for armaments by criminals acting in the area and also lack of a satisfactory
legal system and adequately equipped personnel to deal with the issue.
barreled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law. In no case, however, shall antique firearms include firearms manufactured after 1899”. At: UNITED NATIONS. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. UN Doc. A/RES/55/255, 8 June 2001, art. 3. 9 NAYLOR, R.T. The Rise of the Modern Arms Black Market and the Fall of SupplySide… p. 48.10 UNITED NATIONS. General and Complete Disarmament: Small Arms. UN Doc. A/52/298, 27 August 1997, art. 66.11 BATCHELOR, Peter. Intrastate Conflict, Political Violence and Small Arms Proliferation in Africa. In: GAMBA, Virginia (ed.). Society under siege: crime, violence and illegal weapons. South Africa: Institute for Security Studies, 1997, p. 120.12 For example: ONUSAL (El Salvador); ONUCA (Central America); UNMIH (Haiti); the UN Programme of Action’s Aspects for Control and Regulation of Arms Transfers; and the OAS Central America Munitions Stockpile Destruction Pilot Project.13 General and Complete Disarmament: Small Arms… art. 67.14 General and Complete Disarmament: Small Arms… art. 702.
Finally, Europe is responsible for a large fraction of armament surfeit
accumulated during the Cold War. After the end of the bipolar system, some states
collapsed while the government of others lost political control over their territories. This
situation led to a vast accessibility of armaments, which intensified ethnic clashes and
civil wars. Also, firearms distributed by governments to citizens, in an attempt to create
selfdefence units, were left in the hands of the population after the conflicts were over,
worsening the situation of weapons trafficking in the continent.15
Although actions to limit and control the transfers of such arms have been taken
internationally, they have not been entirely successful. In this sense, United Nations
peacekeeping operations have repeatedly failed to disarm excombatants,16 a
circumstance which leaves arms devoid of control and capable of ending up being
illegally transferred.17
2. STATEMENT OF THE ISSUE
Before taking a closer look on the factors which facilitate the trafficking of
firearms, it is necessary to make a brief description of how these weapons are produced
and traded. Unlike the majority of conventional arms, firearms can be produced in a far
larger number of countries, since their fabrication process employs relatively mature
technologies which are widely diffused around the world.18
Furthermore, their production is concentrated in the hands of private enterprises
which do not have to sell their products necessarily to particular governments. Since this
type of weapon can be used for national security matters as much as for legitimate
defense and protection of citizens, firearms are much more commercial than
conventional weapons, having as their main clients not only national arsenals, but also
nonstate actors and foreign governments. Finally, a great part of the demand for
15 General and Complete Disarmament: Small Arms… art. 73.16 The United Nations peacekeeping operations consist of Disarmament, Demobilization and Reintegration programs (also known as DDR). Disarmament comprises the collection, control and disposal of armaments used by combatants and also the civilian population. Demobilization is the process carried out to downsize or completely disband the armed forces involved in the conflict. Finally, Reintegration programs are composed of measures (including financial assistance) to facilitate the reintegration of former combatants into the civil society.17 General and Complete Disarmament: Small Arms… art. 49.18 SMALL ARMS SURVEY. Small Arms Survey 2004: Rights at Risk. Oxford: Oxford University Press, 2004, p. 7.KRAUSE, Keith. Small Arms and Light Weapons: Proliferation Processes and Policy Options. Available at: www.smallarmssurvey.org/files/sas/publications/w_papers_pdf/DP/DP_Proliferation.pdf . Last accessed: 26 April 2007, p. 6.
firearms is met by the trade of already existing stockpiles, making available for
consumers an even higher amount of this type of weapon in the commercial market.
After they are designed and produced, firearms can be commercialized either by
a “primary circuit” or by a “secondary circuit” of transfers.19 The first one comprises
mainly legal transactions among producers and domestic and international clients. Even
though transfers within this circuit are licit, they “can still represent a proliferation
concern depending on the effectiveness of the legal and political framework of national
and multilateral controls”.20 The second circuit, in its turn, can be defined as “all small
arms and light weapons transactions that are not sanctioned by relevant state authorities
at the appropriate official level, or that are stateauthorized but secret”.21 In other words,
the “secondary circuit” includes both transfers conducted in the “grey market”22 and in
the “black market”.23
In general lines, legal firearms become illegal through four main different paths.
In the first one, dealers supply domestic nonstate actors with weapons illegally leaked
from the arsenals or production plants in producer states. In the second case, small arms
are diverted from the stockpiles of recipient states to nonstate actors. In the third path,
firearms are transferred by governments or by criminal groups to nonstate actors
outside of the original producer state. Finally, in the last case nonstate combatants or
insurgent groups are supplied with small arms by neighboring states, international
agents or allied groups.24
It is important to notice that almost all firearms subject to illicit transfers were
legally produced or procured at some time in their existence. Furthermore, as shown
before, although arms trafficking happens mostly within the “secondary circuit” of
19 KRAUSE, Keith. Small Arms and Light Weapons… p. v.20 KRAUSE, Keith. Small Arms and Light Weapons… p. v.21 KRAUSE, Keith. Small Arms and Light Weapons… p. 18.22 According to the study done by the Small Arms Survey in 2001, grey markets “are commonly understood to encompass only those arms transfers that are legally endorsed or not regulated or those that take place covertly, with either the tacit or explicit support of governments. Covert (secret) transactions may be either legal or illicit, depending on whether they have violated the sanctioning state’s laws or it can be foreseen that the arms will be transferred to forces using them for serious violations of international law”. At: SMALL ARMS SURVEY. Small Arms Survey 2001: Profiling the Problem. Oxford: Oxford University Press, 2001, p. 101.23 Blackmarket transfers comprise “the transfer of arms in knowing violation of the supplying and/or receiving country's laws and regulations […] By definition, blackmarket transactions are conducted in secret and typically involve weapons that have been stolen or improperly obtained from government arsenals or legitimate dealers”. At: KLARE, Michael, ANDERSEN, David. A scourge of guns. Available at: www.fas.org/asmp/library/scourge/scourgech5.pdf. Last accessed: 12 August 2007, p. 57.24 KRAUSE, Keith. Small Arms and Light Weapons… p. 18, 201.
transfers, this can happen in the “primary circuit” as well. As a consequence, states have
to implement measures at both levels so as to effectively address the problem.
2.1 National exports policies
National export policies are traditionally regarded as the most effective measures
to prevent arms trafficking from happening; since they set the rules which govern legal
transfers of weapons between states and which supposedly would create obstacles to
stop their illegal flows. However, the present scenario is characterized by many flaws in
these regulations.25
On one hand, there is the need for states to reinforce their national export
policies, developing stricter norms for selling arms and transferring them. While
countries have the right to sell weapons on a “covert” basis, it is essential to guarantee
that they respect international embargoes against a particular country and commonly
agreed human rights laws, among others. Furthermore, it is important to ensure that
such export policies establish mechanisms which increase the costs of illegal
transactions. On the other hand, however, it is fundamental that such measures do not
affect the right of states “to procure or produce necessary weapons to meet their
legitimate national security and public order needs in accordance with the Charter of the
United Nations and other rules and principles of international law”.26
Although unilateral efforts might restrain in part the proliferation of illegal
weapons, their results are only limited, once potential buyers have a wide range of
suppliers which are able to provide them with illegal firearms. Because of that, it is
fundamental to implement coordinated policies with other states as well.
Finally, it is also important to consider the impact free trade agreements have on
the illicit trade of small arms. In some cases, neighboring states, or countries within the
same region, serve as platforms for the traffic of weapons. This is further exacerbated in
those regions were a regional agreement has been established, since “the trend toward
common areas and international trade agreements has had the unfortunate effect of also
creating loopholes which can be exploited by commodity smugglers. The free transfer
of goods through a common area can allow an illegal shipment to enter a port within a
common area and then to pass through one or more additional countries undetected”.27
25 SMALL ARMS SURVEY. Small Arms Survey 2001… p. 1256.26 UNITED NATIONS. Security Council Resolution. UN Doc. S/RES/1209, 19 November 1998. 27 MEEK, Sarah. Combating Armstrafficking…
This is the case of Europe, for instance. Even though the European Union has set
a directive concerning the transfers of civilianowned firearms within its territory, 28 the
majority of norms which regulate the import, export and transfer of arms in the region is
under the scope of national governments, a situation which might ease the smuggling of
these weapons from one State to another. As one can see, free trade agreements can
facilitate the imports of illegal weapons, hence the clear necessity to develop
multilateral export policies and a positive legislation within the framework of regional
agreements.
2.2 National policies on weapon possession
Domestic laws which regulate buying, selling, possession, transportation and use
of firearms commonly fall under the jurisdiction of Justice and Interior Ministries and
police forces. Because of that, they are regarded as matters which should not suffer any
interference from other states. Nevertheless, in some cases such a set of regulations
affects indirectly the international community.
Firstly, different national legislations “can lead to situations in which lax laws in
one country may fuel illegal trade into a neighboring country with stricter gun laws”.29
This is particularly true in states suffering from porous borders, such as Mexico, once
they are especially vulnerable to liberal practices of arms control of countries nearby,
especially the United States.30 The main problem here, thus, is how to preserve the right
of states to have liberal policies on weapons possessions, allowing their citizens to easily
purchase small arms, while guaranteeing these loose regulations are not harmful to
those countries which have stricter norms, through the incitement of illicit transfers of
weapons from the former to the latter.
Furthermore, it is rare for national arms control laws to directly address the
activities of arms brokers and dealers,31 who play a major role in the trafficking of
firearms. The gravity of such inconsistencies is shown by the study carried out by the 28 COUNCIL OF THE EUROPEAN COMMUNITIES. Council Directive. EEC Doc. 91/477/EEC, 18 June 1991.29 CLEGG, Elizabeth, GREENE, Owen, O’CALLAGHAN, Geraldine. Illicit Light Weapons Trafficking: Coordinating International Action. Available at: www.isiseurope.org/ftp/downloads/bp19.pdf. Last accessed: 25 March 2007, p. 17.30 KRAUSE, Keith. Small Arms and Light Weapons…, p. 12.31 According to the Small Arms Survey 2001, “a dealer is an actor who primarily purchases weapons for subsequent resale: a broker is an actor who primarily works to facilitate weapons transactions. In the world of illicit trafficking, it is arguably brokering, and not dealing, activities that play the most critical role in ensuring a timely and usually cheap flow of weapons to embargoed states, insurgent groups, and other actors”. At: SMALL ARMS SURVEY. Small Arms Survey 2001… p. 98.
Small Arms Survey in 2001,32 which affirms that “due to the limited scope of some of
these systems, western European arms brokers in particular are able to facilitate,
negotiate and organize what are ultimately illicit arms deals without transgressing any
national laws”.33
As indicated, usually transit licensing schemes authorize the passage of arms
from a region within the national territory to the place designated as the export point, or
viceversa, without explicitly determining the exact routes and transport agents which
will carry out the transfer, thus allowing brokers to have a considerable liberty over how
these transactions will happen. Added to that, weak inspections and lack of regulations
in the borders create gaps which are promptly used by these people as ways to facilitate
the illicit flows of weapons.
2.3 Transfers to nonstate actors
The easy access of the population to firearms, due to liberal policies of weapons
possession of supplier governments, increases the possibilities of illegal transfers of
arms from taking place. Having this picture in mind, in 1998 the Canadian Foreign
Minister Lloyd Axworthy proposed a “ban on arms sales to nonstate actors, suggesting
that governments should not engage in acts that inappropriately arm nonstate actors,
either directly or indirectly”.34 As a consequence, “small arms and light weapons
designed and manufactured to military specifications for use as lethal instruments of
war [… would be] reserved for the possession and use of armed forces”.35 The proposal,
thus, would create a more precise distinction between licit and illicit transfers, once they
would fall into one category or another depending on the actors receiving the weapons.
If implemented, such alternative would have become one of the most effective
obstacles to the illicit flows of firearms. However, two important issues closely related
to this discussion were raised, and cannot be disregarded if a decision over the transfers
to nonstate actors is to be reached by a minimum consensus. First of all, governments
have the right to engage in “covert” operations and decide to whomever they want to sell
32 In the website http://www.smallarmssurvey.org/files/sas/publications/yearb2006.html it is possible to have access to the chapter summaries of the six surveys carried out so far by the project “Small Arms Survey”. Each yearbook deals with a different issue related to arms trafficking, therefore, none of the six publications can be considered obsolete as of yet.33 SMALL ARMS SURVEY. Small Arms Survey 2001… p. 124.34 SMALL ARMS SURVEY. Small Arms Survey 2001… p. 124.35 HARTUNG, William D. The New Business of War: Small Arms and the Proliferation of Conflict. Available at: www.cceia.org/media/488_hartung.pdf. Last accessed: 26 April 2007, p. 91.
their weapons. Moreover, the understanding that nonstate actors are forbidden to
purchase weapons would find great opposition in those countries which have a strong
progun culture. A second problem is related to the fact that such measure would make
it impossible for insurgents to fight an illegitimate or repressive government.36 Because
of that, even some major NGOs were opposed to this proposal.
Hence, the challenge is how to stop vicious regimes and militias from having
access to illegal arms while also respecting the sovereignty of states and the right of
rebel groups from arming themselves against a despotic regime.
2.4 Marking and tracing of firearms
Most Conventions and treaties signed at the multilateral level already set norms
for the marking of small arms when they are produced.37 However, these regulations are
not always fully implemented by states. Moreover, the monitoring of firearms exports
and imports is still very loose, facilitating the illicit flows of these weapons. Thus, the
creation of a uniform international system for marking and tracing the country of origin
of these arms and for keeping records of all transfers they went through can be a clear
and effective way to settle part of the problem.38
Despite these efforts, however, it is also fundamental to address a corelated
issue: the majority of states only provide little information regarding their national
security system. While sovereign countries have the right to keep their defense policies
secret, this practice poses a serious obstacle to the transparent control of small arms
transfers. Without sharing information over the levels in the production of these
weapons, reporting all the transactions done with firearms and creating standardized
enduser certificates, among other measures,39 it will be very difficult to accurately
assess the scope of the problem and, therefore, to develop appropriate responses to the
issue.
2.5 Control of weapons stockpiles
36 KRAUSE, Keith. Small Arms and Light Weapons…, p. 26.37 InterAmerican Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, art. VI; Southern Africa Regional Action Programme on Light Arms and Illicit Arms Trafficking; Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, art. 8.38 HARTUNG, William D. The New Business of War… p. 8990. 39 HARTUNG, William D. The New Business of War… p. 8990.
The large surplus of small arms remains a factor which constantly threatens
world peace and stability, for these arms have a long lifespan. To make matters worse,
the collapse of the Soviet Union,40 the downsizing of armed forces worldwide, the end
of major conflicts and the redirection of weapons from ongoing hostilities to other
destinations, all contributed to the further increase of surpluses around the world.41 As a
consequence, the development of measures to effectively control the stockpiles of states
becomes highly important in the context of a fight against the trafficking of such arms.
There is a real urge to reestablish governmental control over the arsenals of
nations which are particularly vulnerable to theft and diversion of weapons from their
territories, such as the countries of the former Soviet Union and South Africa.42
However, it is also crucial that states consider ways of reducing the costs of destroying
or rendering unusable surplus weapons and of giving financial support to those nations
which do not have the resources to implement such actions; otherwise, any attempt to
solve this important matter might result in a failure.43
2.6 Capacity building of weak states
The lack of capacity and infrastructure of some countries to monitor the
possession and flows of firearms over their territories and to implement international
control agreements is another problem to be faced by states while trying to stop the
trafficking of these weapons.44 The initiatives implemented by governments to downsize
and restructure the state and the focus of development assistance programs on grassroots
or local initiatives rather than the reinforcement of the capacities of states pose great
obstacles to the improvement of border and flows control by these countries.45
Furthermore, the capacity building of weak states is pursued unevenly by
different governments, a situation which is aggravated by the fact that “in postconflict
societies, it is often the case that domestic legislation controlling the possession of
40 General and Complete Disarmament: Small Arms, art. 47.41 KRAUSE, Keith. Small Arms and Light Weapons… p. 14.42 MEEK, Sarah. Combating Armstrafficking…43 UNITED NATIONS. Disarmament, Demobilization and Reintegration of ExCombatants in a Peacekeeping Environment. Available at: www.un.org/Depts/dpko/lessons/DD&R.pdf. Last accessed: 12 August 2007, p. 545.44 CLEGG, Elizabeth, GREENE, Owen, O’CALLAGHAN, Geraldine. Illicit Light Weapons…, p.19.45 UNITED NATIONS. General Assembly Resolution. UN Doc. A/ CONF.192/BMS/2003/1, 18 July 2003, Annex par. 49.
weapons is either too lax or that ‘leftover’ weapons from areas of conflict are not
subject to adequate enforcement of existing laws”.46
Therefore, the challenge to conciliate the need for better border controls with a
scenario characterized by the decreasing interference of states over political and
economic matters remains.
3. PREVIOUS INTERNATIONAL ACTION
The international community began to regard the trafficking in firearms as a
serious threat to world peace and stability in the 1990’s decade. In this sense, in 1994
the first attempts to deal with the problem were made by the United Nations General
Assembly (GA) and the Group of Eight Industrialized States (G8), and by 1997 most
states, both at the regional and multilateral levels, were engaged in initiatives to solve
the matter. Taking this into consideration, this section will present and describe those
conventions, agreements and actions which had the greater impacts on the illicit transfer
of small arms.
3.1 The Organization of American States
The Organization of American States (OAS)’ “InterAmerican Convention
against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition,
Explosives, and Other Related Materials”47 (also known as CIFTA), signed in 1997, was
the first regional convention to deal with the threat of trafficking in firearms. Its
negotiating process was very quick and effective, lasting only a year, and it culminated
in the adoption of a legally binding document upon states. As a consequence, the OAS
Convention was soon regarded by other countries and organizations as a model to be
followed.
The main success of the agreement rested on its simplicity. Member states of the
Organization had as their priority to set commonly agreed minimum standards
regarding the illicit traffic of small arms, without the purpose of attempting to
significantly change the national legislations related to the problem.48 Moreover, it
46 DYER, Susannah, O’CALLAGHAN, Geraldine. Combating Illicit Light Weapons Trafficking. Available at: www.basicint.org/pubs/Research/1998combatingillicit.pdf Last accessed: 18 January 2007, p. 25.47 ORGANIZATION OF AMERICAN STATES. InterAmerican Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. OAS Doc. A63, 14 November 1997.48 CLEGG, Elizabeth, GREENE, Owen, O’CALLAGHAN, Geraldine. Illicit Light Weapons… p.6.
connected the illicit traffic of small arms with typical regional concerns, such as drugs
trafficking and transnational organized crime, preferring not to deal with its
consequences to the development and the sustainable peace in the region.
Soon afterwards, the InterAmerican Drug Abuse Control Commission
(CICAD), also developed a “Model Regulations for the Control of the International
Movement of Firearms, their Parts and Components and Ammunition”,49 in a related
effort to the OAS Convention, and the importance of this initiative was soon recognized
by the international community as well.
Even though the Convention and the Model were important first steps in the
fight against the problem, the former still has many flaws which need to be properly
addressed. These are related mainly to its narrow focus, which hindered states party to it
from dealing with the issue in a more consistent manner.
3.2 The European Union
Joining efforts with the international community in 1997 the Netherlands –
European Union (EU) President for the first semester of that year – proposed some
alternatives to combat the illicit flows in small arms. However, lack of political will
soon made it clear that if the EU was to make a document with the aim at eradicating
the threat, then the norms established by it could not be too restrictive.50
The result of the negotiations which closely followed this first attempt was the
adoption of the Programme for Preventing and Combating Illicit Trafficking in
Conventional Arms in June 1997. Dealing with the matter from the perspective of
suppliers and recipients, its framework was much wider than the one of the OAS
Convention, since it considered the trafficking in firearms as a great restrain to
sustainable peace and development.
In general lines, the Programme fosters the cooperation and the coordination of
the police, the customs authorities and the intelligence actions against illicit small arms.
49 The stated purpose of this Model Regulations is “to set out for use on a multilateral basis, harmonized measures and a harmonized system of procedures for monitoring and controlling international movements of firearms, their parts and components and ammunition, in order to prevent their illegal trafficking and diversion to illegal uses and purposes.” At: ORGANIZATION OF AMERICAN STATES. Model Regulations for the Control of the International Movement of Firearms, their Parts and Components and Ammunition. OAS Doc. AG/RES. 1543 (XXVIIIO/98), 2 June 1998.50 CLEGG, Elizabeth, GREENE, Owen, O’CALLAGHAN, Geraldine. Illicit Light Weapons… p. 9.
It emphasizes the need for improvement in the exchange of information among states
and it strengthens the collective efforts to prevent and to combat the matter.51
Nevertheless, one has to consider that the EU Programme is not a legally
binding document, but only a political declaration. It makes no provisions for
harmonizing regulations among EU Member states52 and its focus is much more on the
problem of the demand coming from developing countries than the one coming from
EU Member states themselves.
3.3 The Group of Eight Industrialized States
The G8 first acknowledged the economic and social consequences of the illicit
circulation of firearms in 1994, and within three years the issue had already become a
priority in the Group’s agenda. In May 1998, during the Birmingham Summit, the G8
expressed its support for the CCPCJ’s initiative to make a legally binding document to
deal with the illegal manufacture of and trade in small arms. The strong consensus at the
end of the Summit was not easily reached,53 but it certainly improved the prospects for a
global convention, once most of the members of the G8 are major arms exporters.
3.4 The United Nations
Considerations over the trafficking in firearms first appeared in the United
Nations (UN) agenda in August 1994, when Boutros BoutrosGhali, then Secretary
General of the organization, dispatched a UN factfinding mission to West Africa to
give support to the Government of Mali in the collection of light weapons in the region.
Four months later, the General Assembly passed a resolution54 addressing directly the
problem: the document not only encouraged Member states to implement national
control measures to hinder the illicit circulation of arms in their territories, but also
welcomed the international community to give aid to those countries which did not have
the resources or the knowledge necessary to follow the previous recommendation. 55
51 DYER, Susannah, O’CALLAGHAN, Geraldine. Combating Illicit Light Weapons… p. 18.52 DYER, Susannah, O’CALLAGHAN, Geraldine. Combating Illicit Light Weapons…p. 18.53 The United States proposed an international instrument at that Summit very similar to the main principles of the OAS Convention. For the country this was the best alternative, since it would not have to change its own legislation. However, for the EU Member States the commitment to harmonize import/export certificates and to mark the weapons when they are produced and traded did not converge with their objectives.54 UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/49/75 G, 15 December 1994.55 BIGGS, David. United Nations Contributions to the Process. Available at: www.unidir.org/pdf/articles/pdfart151.pdf. Last accessed: 25 March 2007, p. 12.
More progress was done in December of the following year, when the GA
adopted resolution A/RES/50/90.56 It requested the SecretaryGeneral to establish a
Panel of Governmental Experts with the purpose of discovering the nature and the
causes of the illicit production of and trade in small arms. Among its findings, the Panel
concluded that the lack of harmonization of national legislations and of enforcement
mechanisms, the failure of state to coordinate their actions and to cooperate and the
inadequacy of national controls on production, import and export of small arms were
the main factors to cause their illicit transfers.57
In 1998 both the Commission on Crime Prevention and Criminal Justice
(CCPCJ) and the United Nations Security Council addressed the problem as well: in the
7th session of the CCPCJ, following the release of an extensive firearms survey in the
previous year, a resolution was approved, having as its objectives to sponsor a “legally
binding international instrument to combat illicit manufacturing of and trafficking in
firearms”.58 In its turn, in November, the UNSC recognized for the first time the
destabilizing effects of illicit arm flows through Resolution 1209,59 taking the
opportunity to incite the identification of international arms dealers and to encourage
the collection and the dissemination of information among states.
Finally, in December 2006 the GA adopted resolution
A/RES/61/89, requesting the Secretary-General “to establish a group
of governmental experts […] to examine, commencing in 2008, and
the feasibility, scope and draft parameters for a comprehensive,
legally binding instrument establishing common international
standards for the import, export and transfer of conventional arms”.60
In other words, the GA approved a proposal for the elaboration of an
international treaty with the aim to regulate the commerce of
conventional weapons, also known as Arms Trade Treaty (ATT).
Although this study guide has as its primary focus the fight against
the illicit trade of firearms, it is important for delegates to bear in
56 UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/50/90 A., 19 December 1995.57 DYER, Susannah, O’CALLAGHAN, Geraldine. Combating Illicit Light Weapons Trafficking… p.8.58 CLEGG, Elizabeth, GREENE, Owen, O’CALLAGHAN, Geraldine. Illicit Light Weapons, p. 7.59 UNITED NATIONS. Security Council Resolution. UN Doc. S/RES/1209, 19 November 1998.60 UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/61/89, the 18th of December, 2006.
mind this initiative, since many issues raised by this proposal should
be also dealt with when trying and solving trafficking in firearms.61
As one can see, the question is frequently on the agenda of the GA and the
UNSC. However, despite all the efforts made by these two bodies up to this day, the
CCPCJ’s 1998 initiative and the latter UN Conference on the Illicit Trade in Small Arms
and Light Weapons in All its Aspects still remain the most successful and significant
attempts within the UN system to deal with the issue.
3.4.1 Protocol Against the Illicit Trafficking in Firearms
Negotiations on a draft protocol to supplement the UN Convention against
Transnational Organized Crime began in January 1999, culminating with the adoption
of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition in May 2001. Many measures where devised
within it to prevent and control the illicit circulation of firearms: the Protocol
established, among others, that the illicit trafficking in firearms was to be considered a
criminal offence by the national legislations of the states party to it and that countries
should keep records and mark all firearms traded, while also maintaining an “effective
system of export licensing or authorization […] for the transfer of firearms”.62
Moreover, it emphasized the need for states to share information and to
cooperate at the bilateral, regional and international levels, so as to increase the
effectiveness of regulations destined to prevent the illicit transfer of small arms from
happening. The cooperation should not only aim at preventing, combating and
eradicating the problem, but should also have as one of its objectives to provide training
and technical assistance to those countries which do not have the appropriate knowledge
to implement these measures.
3.4.2 Programme of Action Against the Illicit Trade in Small Arms and Light Weapons
The Programme of Action was adopted at the UN Conference on the Illicit Trade
in Small Arms and Light Weapons in All Its Aspects, realized in July 2001. All Member
states of the UN took a part in the meeting, producing as a result a politically binding
and unanimous international instrument. Having as its main purpose to develop,
implement and strengthen agreed international norms and rules dealing with the illicit
61 The Arms Trade Treaty, for example, will deal with enduser certificates, marking and registering, among others, matters of fundamental importance when trying and preventing arms trafficking from happening.62 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, art.10/pp.1/ p.6.
transfers of small arms and light weapons, the document recognized this had to be done
in three different levels.63
At the national level, states were encouraged to set adequate laws so as to exert
an effective control over the production of small arms and over those people who
engaged in brokering activities, to establish national coordination agencies to
systematize the efforts within the state to prevent arms trafficking from happening and
to ensure the destruction of all confiscated or seized small arms, among others. At the
regional level, the states party to the Programme welcomed all initiatives relating to the
conclusion of legally binding instruments made by regional organizations. Also, it
endorsed cooperation among countries within a same region. Finally, at the global level
the document praised for the disarmament and the demobilization of excombatants,
especially in those countries emerged in a postconflict situation. Moreover, it invited
states to enhance their cooperation with the Interpol.64
In order to properly assess the implementation of the Programme of Action in
the territories of the states which have signed it, two Biennial Meetings of States were
held in the city of New York, in 2003 and in 2005. These gatherings did not aim at
further negotiations; instead, they only had the purpose of providing a forum where
countries could exchange information over the matter.
The First Biennial Meeting offered the chance for states to show the progress
done at the national level so as to implement the UN Programme of Action. There were
great improvements in national legislations dealing with the illicit manufacturing,
possession and trade in weapons, and many regional initiatives started to be developed
and implemented since 2001 to approach the problem. Nevertheless, there was still the
need for countries to reach a consensus concerning the authorization of exports, imports
and transit of small arms and light weapons. Also, regulations on brokering “remain to
be implemented in most countries, with domestic regulations covering brokers and/or
brokering activities existing in only about 16 countries”.65
In the Second Biennial Meeting, in its turn, it was agreed that weapons
collection and destruction; stockpile management; disarmament, demobilization and
63 UNITED NATIONS SMALL ARMS REVIEW CONFERENCE 2006 Website. Available at: www.un.org/events/smallarms2006/index.html. Last accessed: 25 March 2007.64 UNITED NATIONS. Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. UN Doc. A/CONF.192/15.65 UNITED NATIONS. General Assembly Resolution. UN Doc. A/ CONF.192/BMS/2003/1, 18 July 2003, par. 67.
reintegration of former combatants; capacitybuilding; resource mobilization; institution
building; marking and tracing; linkages (terrorism, organized crime, trafficking in drugs
and precious minerals); import/export control; illicit brokering; human development;
public awareness and culture of peace; and children, women and the elderly were areas
which still needed to receive special attention by states if the illicit trafficking in small
arms is to be completely obstructed.66
Finally, the UN Review Conference on Small Arms and Light Weapons,67 held in
New York from 26 June to 7 July 2006, presented the first opportunity for states to
review the UN Programme of Action. Even though several working papers and drafts of
an outcome document were presented in the Review Conference, nations taking part on
it were not able to agree on most substantive matters. Their failure to create alternatives
to those measures of the UN Programme of Action which did not work, therefore,
increases the importance of subsequent actions aimed at solving the arms trafficking
problem.
4. BLOC POSITIONS
The United States of America defends the responsible and legal use of firearms
by civilians and does not endorse international conventions regarding armaments used
by them. Therefore, the country believes that trafficking in firearms must be combated
within the control over military arsenals.68 According to the US government, the
cooperation through the OAS Firearms Convention is an important step to shut down
violence associated with organized crime and to strengthen the abilities to eradicate
arms trafficking in the American continent at the regional level, while protecting its
legal trade and lawful ownership and use.69
Member states of the European Union, by their turn, consider that the illicit
trade of firearms worsens greatly regional conflicts. Because of that, European
countries defend the necessity of taking immediate actions to hinder the increase in the
66 UNITED NATIONS. General Assembly Resolution. UN Doc. A/CONF.192/BMS/2005/1, 19 July 2005, par. 18.67 UNITED NATIONS SMALL ARMS REVIEW CONFERENCE 2006 Website. Available at: www.un.org/events/smallarms2006/index.html. Last accessed: 25 March 200768 UNITED NATIONS CONFERENCE ON THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS Website. Available at: http://disarmament.un.org/cab/smallarms/ Last accessed: 18 May 2007.69 US DEPARTMENT OF STATE Website. Available at: http://www.state.gov/t/pm/rls/fs/2002/3834.htm. Last accessed: 18 May 2007.
magnitude of the threat, while also recognizing that this cannot be done unilaterally.
According to the organization, in the fight against this issue, the transport and the
financing means used to carry out the trafficking in firearms should not be forgotten.
Hence, linkage among this and other types of crime must be verified.70 Moreover, the
EU also believes that the “implementation of export controls and export principles; […]
stockpile management; management of surpluses and destruction”, 71 among others, are
adequate procedures to be enforced so as to combat the problem.
The United Kingdom, along with EU ideas, considers that not only measures to
control arms supply are necessary, but also means to reduce their demand are required.72
In this sense, the country donates resources to developing countries so as to foster
development, security and stability, calling upon other states to do likewise.73
Japan and Canada also share similar views to the one presented by the
European Union. While the former assumes that weapons are a barrier to social and
economic development, considering that the control of arms and the disarmament
process must be pursed worldwide,74 the second defends the idea that since most of the
weapons illegally traded are recycled, passing from one place to another through “legal
loopholes or [the] exploit [of] inadequate national monitoring and enforcement
structures”,75 the alternatives to solve the matter must embrace procedures to raise
government controls over the transfers of small arms and light weapons.
For Latin American and Caribbean States, the experiences in individual
regions, subregions and countries must be taken into account when pursuing means to
deal with the matter. Since the “illicit trade in small arms in the region is mainly related
to drug trafficking, terrorism, transnational organized crime, mercenary activities and
other criminal acts and conduct”,76 the hindrance of such crimes ought to be part of the 70 EUROPEAN COMMISSION Website. Available at: http://ec.europa.eu/justice_home/fsj/crime/firearms/fsj_crime_firearms_en.htm. Last accessed: 18 May 2007.71 http://disarmament.un.org/cab/smallarms/72 SMALL ARMS SURVEY. UK Policy and Strategic Priorities on Small Arms and Light Weapons 20042006. Available at: http://www.smallarmssurvey.org/files/portal/spotlight/country/eu_pdf/europeUK2004.pdf. Last accessed: 18 May 2007.73 http://disarmament.un.org/cab/smallarms/74 MINISTRY OF FOREIGN AFFAIRS OF JAPAN. Japan’s Action on Small Arms. Available at: www.mofa.go.jp/policy/un/disarmament/weapon/pamph2006.pdf Last accessed: 18 May 2007.75 http://disarmament.un.org/cab/smallarms/76 Brasilia Declaration of the Regional Preparatory Meeting of the Latin American and Caribbean States for the 2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. Available at: http://www.smallarmssurvey.org/files/portal/issueareas/measures/Measur_pdf/r_%20measur_pdf/Americas/20001124_brazilia%20declaration.pdf. Last accessed: 18 May 2007.
pathway to settle the issue properly. Furthermore, in addition to regional attempts, a
global programme of action should be established and the participation of the civil
society and the nongovernmental organizations in the process should be fomented. In
accordance with the position of Latin America, Argentina sustains that the starting
point to fight the problem is to standardize norms and criteria for combating the illicit
transfers, also defending that penal and nonpenal measures are of great importance to
stop the trafficking from happening.77
The Russian Federation calls upon all governments to focus on the control over
the trade of small arms in their territories, since no international cooperation will be
efficient without great improvements in domestic laws to suppress traffic. Undoubtedly
national interests differ, so the UN should play a major role in gathering the different
positions and proposing alternatives to solve the matter. Moreover, to ensure that legal
weapons do not become illegal ones, it is vital to collect and store or destruct the arms
previously used in conflicts.78
China considers that the implementation of practical actions of prevention and
the improvement of the national legislations must be seen as major goals in the
international and national agendas dealing with the threat.79 However, more important is
to assure that all the steps taken toward the settlement of the issue respect the
sovereignty of all states.
For India, the “transfers to nonstate actors or unauthorized entities are the
catalyst for violence. Such transfers also run the greatest risk of unauthorized retransfers
thus breeding further destruction. An international norm against such transfers is
therefore essential and timely”.80 Thus, international cooperation and legallybinding
instruments are required. On the other hand, Iran considers that the production,
marking and stockpiling of weapons should be carefully watched while handling the
problem. Furthermore, it is essential that the suppliers, mostly developed countries,
assume responsibility in reducing their production.
Pakistan defends the implementation of policies against the import, smuggling,
possession and public exhibition of weapons. In addition to those procedures, the
Pakistani government believes that the assurance of security to society might suppress
77 http://disarmament.un.org/cab/smallarms/78 http://disarmament.un.org/cab/smallarms/79 http://disarmament.un.org/cab/smallarms/80 http://disarmament.un.org/cab/smallarms/
the demand for small arms and light weapons, decreasing, therefore, the possibility of
those arms – used previously for the security of citizens – to end up on the hands of
criminals.81
Africa as whole is deeply concerned with the impacts of the problem on social
and economic development, peace and security, especially in its continent.82 In this
sense, African Union Member states foment the existence of cooperation at all levels:
local, national, regional, continental and international. It is also of their agreement that
the process of arms transfers should become more transparent. In this respect, the
strengthening of democracy, the promotion of economic recovery and growth and the
respect for international humanitarian law are indispensable to settle the problem. The
implementation of these measures, nevertheless, ought to not affect the sovereignty of
states, the right to individual and collective selfdefense – as stated in United Nations’
Charter – and the right of each country to develop its own system of national security.
Attentive to the ongoing contests in West Africa, Nigeria believes that arms
transfers to nonstate actors must be prohibited into, from or along the regions in
conflict.83 For South Africa, by its turn, governments should seek to obstruct small
arms and light weapons from flowing outside of their frontiers through stricter laws and
severe control over the exploitation in firearms. Also, the destruction of surpluses seems
to be a way of hindering the smuggling of these weapons and their transformation into
illegal arms.84
5. QUESTIONS TO PONDER
1. Is it possible to create norms which reinforce the national export policies of states
and which harmonize different national legislations related to the issue while
respecting the right of countries to procure and produce weapons? How can states
prevent free trade agreements from fomenting even further the trafficking of
firearms?
81 http://disarmament.un.org/cab/smallarms/82 AFRICAN UNION. Protocol Relating to the Establishment of the Peace and Security Council of the African Union, 9 July 2002. 83 THE UNITED NATIONS OFFICE AT GENEVA Website. Available at: http://www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/CBBE3AF9F4896F2FC125729E005C89BE?OpenDocument. Last accessed: 18 May 2007.84 IANSA Website. Available at: www.iansa.org. Last accessed: 18 May 2007.
2. What measures can be devised in order to stop liberal national policies on weapons
possession in one state from negatively affecting neighboring countries with stricter
norms over the matter?
3. Would it be possible to prohibit transfers to nonstate actors? How can countries
establish a clearer distinction between licit and illicit transfers of firearms?
4. What should be the minimum standards of transparency over firearms transfers
made by Governments?
5. How can states improve their border control and their capacity for tracing firearms
transfers into their territories?
6. REFERENCES
Books:SMALL ARMS SURVEY. Small Arms Survey 2001: Profiling the Problem. Oxford: Oxford University Press, 2001.
SMALL ARMS SURVEY. Small Arms Survey 2004: Rights at Risk. Oxford: Oxford University Press, 2004.
Articles from books:BATCHELOR, Peter. Intrastate Conflict, Political Violence and Small Arms Proliferation in Africa In: GAMBA, Virginia (ed.). Society under siege: crime, violence and illegal weapons. South Africa: Institute for Security Studies, 1997. p. 103128.
NAYLOR, R.T. The Rise of the Modern Arms Black Market and the Fall of SupplySide Control. In: GAMBA, Virginia (ed.). Society under siege: crime, violence and illegal weapons. South Africa: Institute for Security Studies, 1997, p. 4372.
Documents of International Organizations/Institutions:AFRICAN UNION. Protocol Relating to the Establishment of the Peace and Security Council of the African Union, 9 July 2002.
Brasilia Declaration of the Regional Preparatory Meeting of the Latin American and Caribbean States for the 2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. Available at: www.smallarmssurvey.org/files/portal/issueareas/measures/Measur_pdf/r_%20measur_pdf/Americas/20001124_brazilia%20declaration.pdf. Last accessed: 18 May 2007.
COUNCIL OF THE EUROPEAN COMMUNITIES. Council Directive. EEC Doc. 91/477/EEC, 18 June 1991.
ORGANIZATION OF AMERICAN STATES. InterAmerican Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. OAS Doc. A63, 14 November 1997.
ORGANIZATION OF AMERICAN STATES. Model Regulations for the Control of the International Movement of Firearms, their Parts and Components and Ammunition. OAS Doc. AG/RES. 1543 (XXVIIIO/98), 2 June 1998.
UNITED NATIONS. General and Complete Disarmament: Small Arms. UN Doc. A/52/298, 27 August 1997.
UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/46/152, 18 December 1991.
UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/49/75 G, 15 December 1994.
UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/50/90 A., 19 December 1995.
UNITED NATIONS. General Assembly Resolution. UN Doc. A/ CONF.192/BMS/2003/1, 18 July 2003.
UNITED NATIONS. General Assembly Resolution. UN Doc. A/CONF.192/BMS/2005/1, 19 July 2005.
UNITED NATIONS. General Assembly Resolution. UN Doc. A/RES/61/89, 18 December 2006.
UNITED NATIONS. Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. UN Doc. A/CONF.192/15.
UNITED NATIONS. Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. UN Doc. A/RES/55/255, 8 June 2001.
UNITED NATIONS. Security Council Resolution. UN Doc. S/RES/1209, 19 November 1998.
Websites:EUROPEAN COMMISSION Website. Available at: http://ec.europa.eu/justice_home/fsj/crime/firearms/fsj_crime_firearms_en.htm. Last accessed: 18 May 2007.
IANSA Website. Available at: www.iansa.org. Last accessed: 18 May 2007.
THE UNITED NATIONS OFFICE AT GENEVA Website. Available at: www.unog.ch/80256EDD006B9C2E/(httpNewsByYear_en)/CBBE3AF9F4896F2FC125729E005C89BE?OpenDocument. Last accessed: 18 May 2007.
UNITED NATIONS CONFERENCE ON THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS Website. Available at: http://disarmament.un.org/cab/smallarms/ Last accessed: 18 May 2007.
UNITED NATIONS OFFICE ON DRUGS AND CRIME Website. Available at: www.unodc.org/unodc/en/crime_cicp_commission.html. Last accessed: 18 May 2007.
UNITED NATIONS SMALL ARMS REVIEW CONFERENCE 2006 Website. Available at: www.un.org/events/smallarms2006/index.html. Last accessed: 25 March 2007.
US DEPARTMENT OF STATE Website. Available at: www.state.gov/t/pm/rls/fs/2002/3834.htm. Last accessed: 18 May 2007.
Articles from the internet:BIGGS, David. United Nations Contributions to the Process. Available at: www.unidir.org/pdf/articles/pdfart151.pdf. Last accessed: 25 March 2007.
CLEGG, Elizabeth, GREENE, Owen, O’CALLAGHAN, Geraldine. Illicit Light Weapons Trafficking: Coordinating International Action. Available at: www.isiseurope.org/ftp/downloads/bp19.pdf. Last accessed: 25 March 2007.
DYER, Susannah, O’CALLAGHAN, Geraldine. Combating Illicit Light Weapons Trafficking. Available at: www.basicint.org/pubs/Research/1998combatingillicit.pdf Last accessed: 18 January 2007.
HARTUNG, William D. The New Business of War: Small Arms and the Proliferation of Conflict. Available at: www.cceia.org/media/488_hartung.pdf. Last accessed: 26 April 2007.
KLARE, Michael, ANDERSEN, David. A scourge of guns. Available at: www.fas.org/asmp/library/scourge/scourgech5.pdf. Last accessed: 12 August 2007.
KRAUSE, Keith. Small Arms and Light Weapons: Proliferation Processes and Policy Options. Available at: www.smallarmssurvey.org/files/sas/publications/w_papers_pdf/DP/DP_Proliferation.pdf . Last accessed: 26 April 2007.
MEEK, Sarah. Combating Armstrafficking: The Need for Integrated Approaches. Available at: www.iss.co.za/pubs/ASR/9No4/Meek.html. Last accessed: 18 January 2007.
MINISTRY OF FOREIGN AFFAIRS OF JAPAN. Japan’s Action on Small Arms. Available at: www.mofa.go.jp/policy/un/disarmament/weapon/pamph2006.pdf Last accessed: 18 May 2007.
SMALL ARMS SURVEY. UK Policy and Strategic Priorities on Small Arms and Light Weapons 20042006. Available at: www.smallarmssurvey.org/files/portal/spotlight/country/eu_pdf/europeUK2004.pdf. Last accessed: 18 May 2007.
UNITED NATIONS. Disarmament, Demobilization and Reintegration of ExCombatants in a Peacekeeping Environment. Available at: www.un.org/Depts/dpko/lessons/DD&R.pdf. Last accessed: 12 August 2007.
TOPIC AREA B
Financial Havens and their role in sheltering economic resources to the Transnational Organized Crime
By Ana Paula Ebeling, Érico Teixeira de Loyola and Igor Castellano da Silva.
1. HISTORICAL BACKGROUND
Money laundering has always walked hand in hand with the international
organized crime. Retracing its origins to the Middle Age and the beginning of Modern
Age with piracy, as the term suggests, “money laundering” is the process which is
carried out by criminals to hide and disguise the source of their assets, erasing any
evidence that could lead to the financial results of their activities.85 However, as burying
treasure boxes on desert islands became a very dangerous and inefficient practice, new
and more sophisticated methods were developed through time to guarantee the future
use by criminals of resources obtained illegally.
85 INTERPOL Website. Available at: www.interpol.int/Public/FinancialCrime/MoneyLaundering/default.asp. Last accessed: 07 April 2007.
Especially in the beginning of the 20th century, other alternatives were created by
mobsters to legitimize their property. By this time, the mafia groups were growing
stronger and in order to conceal from the police and financial authorities the origin and
effective use of their illicit earnings, these groups started investing their capital in
regular companies and real estate, in a process which was more efficient in its objective
of cleansing “dirty money”.86 In this process of modernization and increasing
complexity of unlawful practices, some criminal organizations, chiefly the ones
involved in trafficking and smuggling, developed an international business structure,87
which therefore demanded more effective money disguising routines.
In this context, following the last decades’ economic liberalization and the
modernization of banking and communication system facilities,88 international criminal
organizations found at the socalled “financial havens”89 a safe hideout for their
capital.90
Usually small countries or overseas domains of rich nations, “financial havens”,
with the main purpose of attracting investments, established marketfriendly institutions,
mainly by easing their fiscal regulations. Therefore, this procedure eventually increased
these territories’ GDP, but has also attracted those who did not want to have the origin
of their money disclosed, and consequently worsened the financial control at the
international level.91
86 ROYAL CANADIAN MOUNTED POLICE Website. Available at: www.rcmpgrc.gc.ca/poc/launder_e.htm. Last accessed: 06 April 2007.87 PITOMBO, Antônio S. A. de M. Lavagem de Dinheiro: A Tipicidade do Crime Antecedente. São Paulo: Editora Revista dos Tribunais, 2003.88 CAMDESSUS, Michel. Money Laundering: the Importance of International Countermeasures. Available at: www.imf.org/external/np/speeches/1998/021098.htm. Last accessed: 06 April 2007.89 According to the UNODC, the major characteristics of financial havens are: “no deals for sharing tax information with other countries; availability of instant corporations; corporate secrecy laws; excellent electronic communications; tight bank secrecy laws; a large tourist trade that can help explain major inflows of cash; use of major world currency, preferably the United States dollar, as the local money; a government that is relatively invulnerable to outside pressure; a high degree of economic dependence on the financial services sector; and a geographic location that facilitates business travel to and from rich neighbors”. At: UNODC Website. Available at: www.unodc.org. Last accessed: 08 April 2007.90 SILKSCREEN CONSULTING. A brief history of money laundering. Available at: www.countermoneylaundering.com/p08.htm. Last accessed: 06 April 2007.91 BLUM, Jack A., LEVI, Michael, NAYLOR, R.T., WILLIAMS, Phils. Financial Havens, Banking Secrecy and Money Laundering. Available at: www.imolin.org/imolin/en/finhaeng.html. Last accessed: 20 June 2007.
The threat represented by money laundering nowadays becomes more relevant if
we bear in mind that from 600 billion to 1.8 trillion dollars are laundered per year,92 the
most of it through territories with lax monetary control and flexible financial laws.93
For instance, by 2003, the Cayman Islands, a British overseas territory at the
Caribbean, famous for its extensive record of financial scandals, had around 68,000
registered offshore companies, including 500 banks, 800 insurers, and 5,000 mutual
funds, for a population of not even 50,000 people.94 Bearing these figures in mind, it
becomes inconceivable that all these institutions had established themselves in the
archipelago only seeking low tax rates: on the contrary, the Cayman Islands are known
as a safe haven for resources proceeded from serious crimes, such as drugs trafficking.95
Actually, although the last report of the Financial Action Task Force (FATF),
dated from 2006, identified that there were no NonCooperative Countries and
Territories,96 it does not mean that the international community is close to finding a
solution for the menace represented by international crime funding. As a matter of fact,
money can be laundered anywhere in the globe, which turns every country into a
potential “financial haven”. Moreover, there is yet too much to be done, specifically in
the identification of criminal organizations’ money laundering methods, which demands
a stronger international assistance and financial havens’ compliance towards
international standards on tax, banking and commercial regulations.
2. STATEMENT OF THE ISSUE
Even though economic resources derived from criminal activities may remain
illegal, usually transnational organized crime organizations prefer to hide and disguise
them in order to avoid the money from being confiscated or used as evidence in
92 UNITED STATES DEPARTMENT OF TREASURY AND OFFICE OF ENFORCEMENT. The 2001 National Money Laundering. Available at: www.usdoj.gov/criminal/afmls/ml2001.pdf. Last accessed: 08 April 2007.93 BLUM, Jack A., LEVI, Michael, NAYLOR, R.T., WILLIAMS, Phils. Financial Havens…94 CIA – THE WORLD FACTBOOK Website. Available at: www.cia.gov/cia/publications/factbook/geos/cj.html. Last accessed: 08 April 2007.95 UNITED STATES DEPARTMENT OF STATE. International Narcotics Control Strategy Report. Available at: www.state.gov/p/inl/rls/nrcrpt/2007/vol2/html/80883.htm. Last accessed: 08 April 2007.96 FINANCIAL ACTION TASK FORCE. NonCooperative Countries and Territories. Avalilable at: www.fatfgafi.org/document/4/0,2340,en_32250379_32236992_33916420_1_1_1_1,00.html. Last Accessed: 08 April 2007 (for more information on the FATF, check the “Previous International Actions” section of this Study Guide).
investigations dealing with the origins of these resources. Money laundering, therefore,
plays an important role in providing most of the resources to the transnational organized
crime. As a consequence, it is important to have a full comprehension of the usual
proceedings undertaken by criminal organizations in order to fight the predicate crime97
itself.
The process of money laundering comprises three main stages.98 In the first one,
the proceeds of criminal activities have to be moved abroad of the territory where the
crime has been committed. In the second phase, launderers transfer the funds through
the international banking system so as to disguise the trail to foil pursuit. Finally, in the
last stage the money is made available once again to the criminals in the form of legal
earnings.
2.1. The three stages of money laundering
2.1.1. The Placement Stage
The “placement” is the first step to a successful money laundering scheme. The
primary objective at this point is to dissociate the resources from any illegal activity,
avoiding suspicion over its origin. According to a comprehensive UN study99 on the
matter, the first stage of money laundering can be carried out either by sidestepping the
international financial system, where bulkcash shipping is the most notorious example,
or through the formal banking system. If the last alternative is chosen, then some
precautions are required. Criminals cannot make large cash deposits in foreign countries
since they attract the attention of government inspectors and often there is the necessity
to use in the operations a front business which has a credible explanation for moving
vast amounts of money abroad. As a consequence, it is common for companies inserted
in the international trade of goods or services to be engaged in money laundering
activities.
97 Predicate Crime is the criminal offense that comes previously to another. For instance, there cannot be money laundering if there is no other previous criminal practice that justifies the latter, such as arms trafficking. Furthermore, depending on the legislation, if there is no predicate crime, there is no possibility of typifying that illicit as money laundering.98 UNITED NATIONS OFFICE ON DRUGS AND CRIME. Global Programme Against Money Laundering. Available at: www.unodc.org/unodc/en/money_laundering_cycle.html. Last accessed: 20 June 2007.99 BLUM, Jack A., LEVI, Michael, NAYLOR, R.T., WILLIAMS, Phils. Financial Havens…
2.1.2. The Layering Stage
In the second stage, criminals further secure the illegal money by “obscuring any
paper trail concerning money already transferred from one bank to another”.100 It is
usually at this point that offshore financial centers (OFCs)101 become involved in the
money laundering process. Just before making a bank deposit in a financial haven,
however, it is common for transnational criminal organizations to set an already existent
company in an offshore jurisdiction or to open a brand new offshore enterprise in a
region which consents to this kind of operation. This allows for the money to be held by
the company in question, and not by any particular individual, thus giving criminals an
extra layer of protection against future investigations.
2.1.3. The Integration Stage
In the last stage, once the money trail has been successfully lost, the proceeds of
criminal acts enter once more the domestic financial system of the territory where they
would have previously been considered illegal. This operation may be conducted in
many ways: the funds might be incorporated to the system through casino winnings, real
state flips, business income, among others. As in the first stage, financial havens play
only a marginal role in this phase of the process.
2.2. Financial Havens102 and Money Laundering
100 DACHINE, Vitali, DAVYDOV, Semen. Offshore Banking: Uses and Abuses. Available at: www.sbf.unisg.ch/org/sbf/web.nsf/0/80a031a639e56f97c1256ba3002e4e6c/$FILE/Offshore%20Banking.pdf. Last accessed: 20 June 2007, p. 19.101 As stated by Dachine and Davydov, “offshore financial centres (OFCs) are jurisdictions where offshore banks are exempt from a wide range of regulations which are normally imposed on onshore institutions. Specifically, deposits are not subject to reserve requirements, bank transactions are mostly taxexempt or treated under a favourable fiscal regime, and they are free of interest and exchange rate restrictions. Moreover, in many cases, offshore banks are exempt from regulatory scrutiny with respect to liquidity or capital adequacy”. OFCs are also known as “financial” or “tax havens”. At: DACHINE, Vitali, DAVYDOV, Semen. Offshore banking: uses and abuses, p. 4.102 According to the IMF, the following countries are OFCs: in the Western Hemisphere: Anguilla, Antigua, Aruba, Bahamas, Barbados, Belize, Bermuda, British Virgin Islands, Cayman Islands, Costa Rica, Dominica, Grenada, Montserrat, Netherlands Antilles, Panama, Puerto Rico, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Turks and Caicos Islands, United States, Uruguay; in Europe: Andorra, Campione, Cyprus, Gibraltar, Guernsey, Ireland (Dublin), Isle of Man, Jersey, Liechtenstein, London (UK), Luxembourg, Madeira, Malta, Monaco, the Netherlands, Switzerland; in Asia and the Pacific: Cook Islands, Guam, Japan, Hong Kong Special Administrative Region, Labuan, Macao, Marianas, Marshall Islands, Micronesia, Nauru, Niue, Philippines, Singapore, Tahiti, Thailand, Vanatu, Western Samoa; in the Middle East: Bahrain, Israel, Lebanon; and in Africa: Djibouti, Liberia, Mauritius, Seychelles, Tangier. At: INTERNATIONAL MONETARY FUND. Offshore Financial
Although it is widely recognized the importance of dealing with all three stages
of money laundering in an integrated approach, so as to effectively eradicate this
practice and thus make it harder for transnational organized crime to have access to
funds to finance their illicit activities, for the purpose of this study guide delegates shall
focus their efforts in solving the specific problem of the use of financial havens as
facilitators of this type of crime. In this context, they are invited to develop strategies to
obstruct money laundering specially in the second phase of the process, since it is in this
stage that financial havens are used more often by criminals.
In most cases financial havens are characterized by limited resources, a growing
population and a low economic development. It is common for these regions to have
experienced in the past years a crisis in their traditional sources of livelihood, since their
agricultural sector suffers either from a lack of fertile land or from the strong
competition of subsidized products in world markets. To aggravate this situation, some
countries, especially those situated in the Caribbean, recently saw the decline of sectors
which were the basis of their economy, such as salt harvesting or merchant shipping.103
As a consequence, these nations were increasingly attracted to the financial services
sector.
Furthermore, the deregulation of financial markets caused great changes in the
economies of these jurisdictions. If in the past states used the control of capitals as a
mean to restrict the entry of speculative assets, from the 90’s onwards this tool was
discarded by governments. As a result, small and vulnerable nations had to start
attracting capitals to compensate speculative movements, and many of them did so by
adopting bank secrecy laws104 which protected foreign currency deposits in their
banking system.
Therefore, strict bank secrecy norms became one of the great competitive
advantages of these regions. Offering higher protection to their clients than onshore
jurisdictions, these countries increased the attractiveness of depositing money in their
financial sector.
Centers: IMF Background Paper. Available at: http://www.imf.org/external/np/mae/oshore/2000/eng/back.htm#13. Last accessed: 12 July 2007103 BLUM, Jack A., LEVI, Michael, NAYLOR, R.T., WILLIAMS, Phils. Financial Havens…104 It is important to acknowledge that bank secrecy norms are legitimate. They were developed to guarantee the confidentiality of relations between bankers and their customers and to protect the right of privacy and even to the present day all countries allow to a greater or a lesser extent for banks to deny access to customer information in certain cases.
The tightening of regulations aimed at controlling the entry of capitals in
financial havens, however, is not as simple as it might appear at first sight. On one hand,
such measures are necessary, once criminals take advantage of bank secrecy laws to
hide the proceeds of crime from official authorities.105 On the other hand, the
establishment of stricter norms might pose a burden on the economies of tax havens.
This would happen mainly because of the competition among offshore financial centers
in force nowadays. As stated in the report produced by the United Nations, the raising
rivalry in the financial sector resulted in lower “standards of diligence any one haven
can introduce without losing customers en masse to others”.106 At the same time that
this situation was greatly responsible for the easier access of illegal money to the
banking system, it conferred to these regions greater competitiveness. If the relaxing or
lifting of bank secrecy occurs only in some places, the nations which do so might lose
the majority of their clients to financial havens which continue to have stricter norms
regarding the access of authorities to customer’s information. To make matters worse,
eventually, they might even suffer the consequences of an economic destabilization
caused by the diminishing of their financial sector.
As one can see, it is important to discuss not only the role of bank secrecy in the
money laundering process and whether it should be relaxed or not, but also the necessity
of all countries to adopt similar norms regarding the standards required for the access of
funds to the financial sector. Moreover, it is fundamental to debate how states should
control the use by official authorities of customer’s information. This is crucial since
“the adequate protection of taxpayers’ rights and the confidentiality of their banking
information are particularly important for economies in transition that are attempting to
establish sound banking and taxation systems. Protection of the information from
unauthorized disclosure is essential to obtaining and maintaining confidence in the
banking and taxation systems”.107
Another important matter to be addressed relates to the other impacts financial
deregulation brought to the fight against money laundering. The relaxation of control in
the financial sector greatly affected the capacity of local authorities to find, freeze and
105 RAWLINGS, Greg, UNGER, Brigitte. Competing for Criminal Money. Available at: www.uu.nl/uupublish/contentcln/0526.pdf. Last accessed: 20 June 2007.106 BLUM, Jack A., LEVI, Michael, NAYLOR, R.T., WILLIAMS, Phils. Financial Havens…107 ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT. Committee on Fiscal Affairs Report. OECD Doc. C(97)64/FINAL, 24 March 2000, art. 31.
forfeit criminally derived income and assets, thus making it easier for criminals to use
financial havens as a safe hideout for their illegal resources. The process brought these
consequences due to several reasons. At the internal level, many financial institutions
have had to lower the barriers of entry of funds in order to become more competitive.
And “once most of the nontax barriers to the integration of financial and capital
markets had been removed, individuals and legal entities gained access, at little or no
cost, to banking systems around the globe through which to conduct both legitimate and
illegitimate transactions”.108 At the international level, deregulation meant that once
criminal assets are transferred successfully to a bank account, they can be moved from
one place to the other with almost no obstacles. Also, it increased the possibility of
using different jurisdictions to launder money, once national legislations tend to adopt
similar levels of regulations in their financial markets.
Finally, a last point which should be addressed by delegates in the coming
discussions is related to the minimum standards required by different jurisdictions to
allow the disclosure of customer’s banking information to official authorities. The
common practice of most nations is to give only restricted access to the list of depositors
of banks located within their territories, as well as to the transactions carried out by
these institutions. Such permission is usually granted to law enforcement officers when
they are engaged in investigations of a matter which is considered to be a crime in the
jurisdiction where the bank is situated.
However, as known, different countries have different points of view over what
should be considered a crime or not. This situation is particularly harmful for those in
the search for criminal money. While they do not get the permission to investigate the
account targeted, launderers might move their funds to another bank in another region.
Hence, the inexistence of a set of principles and conditions under which all states
commit themselves to give assistance in the search for laundered money poses a serious
threat to any attempt to improve the capacity of financial authorities and the police to
prosecute such illegal resources.
3. PREVIOUS INTERNATIONAL ACTION
108 Committee on Fiscal Affairs Report … art. 37.
The role financial havens play in sheltering resources for transnational organized
crime is undeniable, once they are used many times by criminals to launder the proceeds
of illegal activities. However, as seen before, they are legitimate. Owning to that, the
majority of actions developed and implemented at the international and regional levels
to combat this problem remain, until today, based on the regulation of the banking
system and the fight against money laundering in the OFCs.
The first effective measure adopted at the international level against the non
regulated liberty of financial systems dates back to the middle of the 1970s, with the
1975 Basel Concordat .109 At that time, the Basel Committee on Banking Supervision110
initiated its work towards the establishment of an active cooperation among countries
regarding the matter. Thirteen years later, the same committee made the International
Convergence of Capital Measurement and Capital Standards111 declaration (commonly
known as “Know Your Customer”), which established the basic principles to guide bank
supervision. From then onwards, most nations throughout the world started to adopt
these principles, basing their supervisory banking system on the “Know your Customer”
norms.112
Nevertheless, it was only in the 1990s that proposals to combat the infiltration of
criminal money in the legal economy began to be developed. This was a result of
corporate collapses, and banking scandals, heightened concern over terrorist financing
and the risk posed to financial markets by money laundering.113 Since then, many
actions were implemented at the international level, starting with the Basel Committee’s
Minimum Standards (1992), which recommended four main principles to be followed by
States: the supervision of all international banking groups and international banks by a
home country authority; the prior consent of both the host country supervisory
authority and the bank’s and, if different, banking group’s home country supervisory
109 COMITE DES REGLES ET PRATIQUES DE CONTROLE DES OPERATIONS BANCAIRES. Rapport sur le contrôle des établissements des banques a l’etranger. Available at: http://www.bis.org/publ/bcbs00afr.pdf. Last accessed: 16 July 2007.110 BANK FOR INTERNATIONAL SETTLEMENTS. Basel Committee on Banking Supervision. Available at: http://www.bis.org/bcbs/index.htm. Last accessed: 16 July 2007.111 BASEL COMMITTEE ON BANKING SUPERVISION. International Convergence of Capital Measurement and Capital Standards. Available at: http://www.bis.org/publ/bcbsc111.pdf. Last accessed: 13 August 2007.112 GALVÃO, Gil, THOUMI, Francisco. Papel dos organismos internacionais no combate à lavagem de dinheiro. Available at: http://daleth.cjf.gov.br/revista/seriecadernos/vol17.htm#PAPEL%20DOS%20ORGANISMOS. Last accessed: 18 May 2007, p. 53. 113 RAWLINGS, Greg, UNGER, Brigitte. Competing for …
authority in order to be able to create a crossborder banking establishment; the right of
supervisory authorities to gather information from the crossborder banking
establishments of the banks or banking groups for which they are the home country
supervisor; and the possibility of a host country authority to impose restrictive measures
necessary to satisfy its prudential concerns consistent with the minimum standards set
by the Committee, including the prohibition of the creation of banking establishments.114
Following this action, in 1997 the Basel Committee published the Core
Principles for Effective Banking Supervision.115 The document comprised “25 basic
principles that need to be in place for a supervisory system to be effective”,116 having as
its main purpose to create measures to effectively reduce supervisory gaps and to
promote the homogenization of the different national accounting standards. Although
the Core Principles are regarded as an important tool for the supervising of OFCs, a
major part of the countries accessed by it is still classified as noncompliant. This is due
mainly to the inexistence of a consolidated supervision system especially in what
concerns the lack of reporting and accounting by those regions.117
Another organism which has been working since the beginning of the 1980s for a
clearer bank supervision system is the Committee on Fiscal Affairs (CFA) of the
Organization for Economic Cooperation and Development (OECD). In 1985 it
published the Taxation and the Abuse of Bank Secrecy Report, with the objective to
promote the spread of information related to the relaxation of the bank secrecy and to
discuss the central role of tax authorities in a context of lack of bank information. Years
later, trying to adjust to a new context characterized by low levels of exchange controls
and the rapid expansion of crossborder financial transactions,118 the OECD focused its
efforts on the rising of possibilities of illegal activities – mainly related to criminal
money. In this way, the 1995 Report on Globalization of Financial Markets and the Tax
114 BASLE COMMITTEE. Minimum Standards for the Supervision of International Banking Groups and their Crossborder Establishments. Available at: http://www.bis.org/publ/bcbsc314.pdf. Last accessed: 16 July 2007, p. 35.115 BASLE COMMITTEE. Core principles for effective banking supervision. Available at: http://www.bis.org/publ/bcbs30a.pdf. Last accessed: 16 July 2007.116 INTERNATIONAL MONETARY FUND, WORLD BANK. Implementation of the Basel Core Principles for Effective Banking Supervision, Experiences, Influences, and Perspectives. Available at: www1.worldbank.org/finance/assets/images/Effective_Banking_Supervision.pdf. Last accessed: 16 July 2007.117 INTERNATIONAL MONETARY FUND. Offshore Financial Centers: IMF Staff Assessments. Available at: http://www.imf.org/external/np/ofca/ofca.asp#V. Last accessed: 13 July 2007.118 ORGANIZATION FOR ECONOMIC COOPERATION AND DEVELOPMENT. Committee on Fiscal Affairs Report. OECD Doc. C(97)64/FINAL, 24 March 2000.
Treatment of Income and Capital came to improve the studies and the limits of the bank
secrecy system.
Other important actions that have been taken at the international level to help
improve bank regulation, turning specifically to the role of the Offshore Financial
Centers, are the Financial Stability Forum's Working Group on Offshore Financial
Centers (FSF) and the International Monetary Fund’s (IMF) studies on OFCs. The FSF
is a forum composed by senior representatives of national financial authorities,
international financial institutions, international regulatory and supervisory groupings,
committees of central bank experts and the European Central Bank.119 The Working
Group on OFCs, in particular, has been working closely with the IMF – identifying the
ideal standards which should be adopted by the OFCs, mainly those which are
participating in the IMF assessment program.
Among the main contributions of the IMF in the fight against the involvement of
financial havens in the money laundering cycle, we can mention the publication of the
Offshore Financial Centers IMF Background Paper120 in 2000 and the creation of the
Bank/Fund Financial Sector Assessment Program (FSAP)121 together with the World
Bank. Within the first initiative an assessment program was developed, and 44
jurisdictions were invited to improve conditions regarding bank information. In 2004,
the program initiated its second phase, with a special emphasis in addressing
weaknesses identified in the first phase of assessments; in finding relevant areas which
were not previously assessed; and in fomenting cooperation and information sharing.122
The FSAP, by its turn, works since 1999 to analyze the status of a country’s financial
system, to indicate imminent risks to the referred economy, to provide technical
assistance and to incentive responsible policies.
Regarding the work done by the United Nations to solve the problem, it was
developed within the UN framework the UN Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances and the UN Convention against
119 FINANCIAL STABILITY FORUM Website. Available at: http://www.fsforum.org. Last accessed: 20 July 2007. 120 INTERNATIONAL MONETARY FUND. Offshore Financial Centers: IMF Background...121 INTERNATIONAL MONETARY FUND. Financial Sector Assessment Program. Available at: http://www.imf.org/external/np/fsap/fsap.asp. Last accessed: 20 July 2007.122 INTERNATIONAL MONETARY FUND. Offshore Financial Centers: The Assessment Program A Progress Report. Available at: http://www.imf.org/external/np/pp/eng/2005/022505.pdf. Last accessed: 20 July 2007.
Transnational Organized Crime. The latter was especially important, since it expanded
the moneylaundering definition to “include the proceeds of all serious crime”.123
Nevertheless, the organization has still much more to do, since it has focused its efforts
manly on combating money laundering, without paying much attention to the
development of alternatives to avoid the usage of financial havens as safe hideouts for
the proceeds of criminal activities.
a. The Financial Task Force
The greatest evolution regarding the subject has been reached outside the UN
framework. Created in 1989 by the G7 nations at the Paris Summit, the Financial
Action Task Force (FATF) has the expressed purpose of creating principles and
strategies and of promoting national and international policies so as to guide the
engagement against money laundering and terrorist financing.124
Among the main tasks of the FATF, a few deserve to be mentioned: the
organization shall establish international standards for combating money laundering and
terrorist financing and ensure this is done through a global action; make sure that FATF
members have implemented the revised Forty and Eight Recommendations in their
entirety and in an effective manner; and enhance the relationship among the FATF and
FATFstyle regional bodies (FSRBs), the Offshore Group of Banking Supervisors
(OGBS) and nonmember countries.125
The FATF currently follows these objectives acting through two important
procedures. The first one is referred to as “selfassessment”, in which each country, to
validate its position in a cooperative international regime, has to adjust its financial
system to Forty Recommendations126 proposed by the organism. In general lines, these
recommendations are grounded on three main aspects: “the improvement of the national
legal system, the enhancement of the financial system, and the strengthening of
123 UNITED NATIONS OFFICE ON DRUGS AND CRIME. Global Programme Against ...124 FINANCIAL ACTION TASK FORCE Website. Available at: www.fatfgafi.org. Last accessed: 20 June 2007.125 FINANCIAL ACTION TASK FORCE. Mandate for the Future of the FATF(September 2004 – December 2012). Available at: www.fatfgafi.org/dataoecd/14/60/36309648.pdf. Last accessed: 20 June 2007.126 The 40 Recommendations were first developed in 1990 and later updated in 1996 and 2003. For more information check: FINANCIAL ACTION TASK FORCE. The Forty Recommendations. Available at: http://www.fatfgafi.org/dataoecd/7/40/34849567.PDF. Last accessed: 20 June 2007.
international cooperation”.127 As of October 2001, these nations also had to adjust their
supervisory banking system to the 9 Special Recommendations on Terrorism
Financing,128 adopted by the FATF in that year and later updated in 2004 with the
purpose to identify, prevent and suppress the financing of terrorism and terrorist acts.
The second procedure, in its turn, is based on a “mutual evaluation process”, in
which a team of experts and the FATF Secretariat inspect onsite the level of
commitment of member countries based in previously defined criteria of selection and
exam.129 After the inspection, a report is elaborated by the FATF supervisors and its
summary is published in the website of the organization. It can then be analyzed and
discussed in the presence of other members – ultimately reaching the document’s final
content.
If the country in question fails to implement antimoney laundering policies, a
NonCooperative Countries and Territories (NCCT) report might be issued to pressure
the referred state to implement specific measures in the legislation and public sectors.130
The classification of a nation as NonCooperative might bring two consequences to it.
First of all, Recommendation 21 of the Forty Recommendations establishes that
“financial institutions should give special attention to business relationships and transactions with persons, including companies and financial institutions, from countries which do not or insufficiently apply the FATF Recommendations. Whenever these transactions have no apparent economic or visible lawful purpose, their background and purpose should, as far as possible, be examined, the findings established in writing, and be available to help competent authorities. Where such a country continues not to apply or insufficiently applies the FATF Recommendations, countries should be able to apply appropriate countermeasures”.131
127 BROOMBALL, Bruce; CASTLE, Allan. The International Money Laundering Regime and the Asia Pacific: Pairing Multilateral Cooperation with Domestic Institutional Reform. Available at: www.icclr.law.ubc.ca/Publications/Reports/MoneyLaunderingRegime.PDF. Last accessed: 18 May 2007, p 1011.128 FINANCIAL ACTION TASK FORCE. 9 Special Recommendations on Terrorism Financing. Available at: www.fatfgafi.org/document/9/0,3343,en_32250379_32236920_34032073_1_1_1_1,00.html. Last accessed: 20 June 2007.129 FINANCIAL ACTION TASK FORCE Website…130 Such report was first published in 2000, and 15 jurisdictions were considered back then to be noncompliant with the FATF standards. In 2001, the report’s new revision cited eight more countries, consolidating a total of 23 NCCTs (Bahamas, Cayman Islands, Cook Islands, Dominica, Egypt, Grenada, Guatemala, Hungary, Indonesia, Israel, Lebanon, Liechtenstein, Marshall Islands, Myanmar, Nauru, Nigeria, Niue, Panama, Philippines, Russia, St. Kitts & Nevis, St. Vincent & the Grenadines and Ukraine). As of now, “all these 23 jurisdictions are no longer on the NCCT list, since they have made significant progresses and strengthened their antimoney laundering and counterterrorist financing systems to ensure they would not be listed by the FATF as noncooperative countries again”. At: FINANCIAL ACTION TASK FORCE. Chairman’s Summary, Vancouver Plenary. FATF Doc. FATF/PLEN (2006)53, 913 October 2006.131 FINANCIAL ACTION TASK FORCE. The Forty Recommendations…p. 7.
Second, the FATF suggests the application of gradual and proportionate
countermeasures to nations that have not made sufficient progress in implementing the
standards set by the organization. In order to be more effective, these countermeasures
shall be adopted in a “collaborative fashion by other states towards a shared aim”.132
If the regarded member still does not signalize its willingness to fulfill the
recommendations suggested by the FATF, a Public Statement shall be emitted. This
action can be translated as a public notice, bringing to the attention of the international
public opinion that a specific country did not accomplish the FATF rules. Finally, as a
last resource to solve any possible deadlock, the FATF might effectively exclude the
noncooperative jurisdiction from the organism in a General Assembly meeting while
the situation is not changed.133
It is important to observe that both procedures of declaring a country to be Non
cooperative and of emitting a Public Statement work visibly as a soft power tool. This
type of action can automatically bring to the noncooperative country an extraordinary
amount of problems, since there will probably be a lack of lawful external investments
which might even lead to a state of total financial paralysis.134
Currently, the strategy used by the FATF is to expand its number of members to
regionally strategic countries, and to encourage the emergency of regional bodies
aligned to the model proposed by the institution. The importance of those organisms in
the regional scope is mainly related to the implementation of policies and processes that
are more coherent with the local situations and sensibilities.135
b. The Global Program Against Money Laundering
Another important body recently created (1997) with the purpose of putting
pressure on the international community to fight against money laundering is the
Global Program Against Money Laundering (GPML) – a key instrument of the United 132 PRIVACY INTERNATIONAL. Briefing on FATF and Financial Surveillance. Available at: http://www.privacyinternational.org/article.shtml?cmd%5B347%5D=x347539350. Last accessed: 13 July 2007.133 GALVÃO, Gil, THOUMI, Francisco. Papel dos organismos internacionais… p.57134 LEVI, Michael, GILMORE, William. Terrorist Finance, Money Laundering and the Rise and Rise of Mutual Evaluation: A New Paradigm for Crime Control? In: European Journal of Law Reform, vol. 4, 2002, p. 350.135 LEVI, Michael, GILMORE, William. Terrorist Finance, Money Laundering and the Rise… p. 352.
Nations Office on Drugs and Crime (UNODC).136 Among its activities, one in particular
is related to financial havens and their role in the money laundering cycle: the GPML
regulates offshore financial systems through standards, based on the principles of the
Ten Fundamental Laws of Money Laundering,137 sent to local financial institutions. It is
in this exact field that occurs the identification of Noncooperative offshore entities
through reports that aim to detect institutional imperfections in offshore centers, as well
as to point out the improvements carried through by those jurisdictions in recent years.
c. Regional Organisms
There are several bodies acting in the regional scope, most of them created and
modeled as FATF Style Regional Bodies (FSRB). The Asia/Pacific Group on Money
Laundering (APG), created in 1997, the Caribbean Financial Action Task Force on
Money Laundering (CFATF) and the Council of Europe, through the Committee of
Experts on the Evaluation of AntiMoney Laundering Measures (MONEYVAL), are the
ones with more visible political activities.
Moreover, there are some regional bodies which can be related as model
organizations, since they help international institutions to improve antimoney
laundering regulations. As example of those, there are the Eastern and Southern Africa
AntiMoney Laundering Group (ESAAMLG), created in August 1999; the Eurasian
Group on Combating Money Laundering and Financing Terrorism (EAG), established
in October 2004 in Moscow; the Financial Action Task Force of South America
(GAFISUD), created in December 2000 in Colombia, the Middle East & North Africa
Financial Action Task Force (MENAFATF), established in November 2004 in Bahrain
and the InterAmerican Drug Abuse Control Commission’s (CICAD) AntiMoney
Laundering Agency, established within the Organization of American States (OAS).
d. Financial Intelligence Units138
136 UNITED NATIONS OFFICE ON DRUGS AND CRIME. Global Program Against ...137 UNITED NATIONS OFFICE ON DRUGS AND CRIME. Global Program Against…138 According to the IMF and the World Bank, “a FIU is a central national agency responsible for receiving, analyzing, and transmitting disclosures on suspicious transactions to the competent authorities”. At: INTERNATIONAL MONETARY FUND, WORLD BANK. Financial Intelligence Units: An Overview. Available at: http://www.imf.org/external/pubs/ft/FIU/fiu.pdf. Last accessed: 20 June 2007, p. ix.
The creation of the Financial Intelligence Units (FIUs)’ system in the beginning
of the 1990s was also an important tool in the fight against the lack of internal
regulation in the banking system. They were established as a response to the need to
incorporate the financial institutions to the effort to combat money laundering while
ensuring at the same time that their operation would not be affected by the measures
implemented to address the problem.
The system forecasts the creation of a centralized national financial institution in
each state, to which every other financial institution located in the territory of the
country in question should report to. The FIUs have proved their efficiency in several
economies, and they are being currently adopted in other countries as well.139
Furthermore, in 1995 the Egmont Group was established. This is an informal group,
which gathers some FIUs that began to work together so as to better achieve their
objectives. The Egmont Group gives all the necessary support those national institutions
need, including exchange of financial intelligence information and experience.140
4. BLOC POSITIONS
As one can see, several actions have been developed and implemented at the
international level in order to hinder the use of financial havens as facilitators of money
laundering activities. However, considering the complexity of the problem and the many
interests at stake, no drastic operation, such as the complete fall of bank secrecy, has
been carried out until today, possibly because there are still many countries which
obtain economic advantages due to low tax rate policies and financial liberty.
Even though there are no countries considered to be noncooperative in the fight
against money laundering nowadays, it is clear that a direct fight against financial
havens would probably hurt some national intentions. Considering the existence of tax
havens which use bank secrecy and low tax rates to flourish their financial system, it is
clear that some countries would have some delays to execute antimoney laundering
regulations.
139 The complete list of the FIUs currently in operation, according to the Egmont Group, is available at: http://www.egmontgroup.org/list_of_fius.pdf. Last accessed: 13 August 2007.140 THE EGMONT GROUP. Information Paper on Financial Intelligence Units and the Egmont Group 2004. Available at: www.egmontgroup.org/info_paper_final_oct_2004.pdf. Last accessed: 13 August 2007.
Therefore, since there are no defined bloc positions supporting the money
laundering issue, it is possible to divide the international system between the countries
which historically have fought against money laundering and the omission of tax havens,
and the jurisdictions that lately have been changing their financial policies much more
because of the international pressure than for their own determination.
In the first group, the greatest representatives are the western powers and some
major centers in Asia, such as Japan and Hong Kong. The policies they developed
against money laundering were effective even before the international community began
to make its first moves on the matter. This is the case of the United States of America,
which always played a key role in the discussions regarding the problem.
The first measure implemented by the country was a system of current
transaction report (CTR), substituted afterwards by the Financial Crimes Enforcement
Network (FinCEN) – based on the “know your customer” standards and the Suspicious
Activity Report (SAR) system. At that point, however, the American government was
still highly committed with promoting the liberalization of financial markets, a fact
which diminished the effectiveness of the actions adopted by the USA against money
laundering. This situation has changed with the current fight against terrorism. The
country adopted the Patriotic Act, and with it, it started to support the establishment of
strong measures so as to stop money laundering from financing terrorist acts.141
Europe, Hong Kong and Japan have a solid position in the matter as well.
Their efforts to consolidate the international standards on bank supervision are clearly
notorious. As an example, it is essential to mention that those countries adopted a
suspicious activity reports (SAR) system which provides more discriminating and
practically useful information relative to a CTR system.
Nevertheless, it is important to mention that even some nations which have been
fighting pragmatically the money laundering cycle maintained or still maintain some
bank secrecy system. This is the case of the United States of America142 and the United
Kingdom, which separated, respectively, New York and London from their mainstream
economies in order to offer anonymous investment opportunities in the bond and stock 141 Some of the money used for the terrorist attacks of September 11th 2001 was funneled through Dubai, which has recently set itself up as a financial centre. At: THE ECONOMIST. Place in the Sun. Available at: www.economist.com/surveys/displaystory.cfm?story_id=8695139. Last accessed: 13 July 2007.142 FEDERAL RESERVE BANK OF NEW YORK. International Banking Facilities. Available at: http://www.newyorkfed.org/aboutthefed/fedpoint/fed34.html. Last accessed: 16 July 2007.
markets to investors.143 Also, in the case of the UK, the country is legally responsible for
several territories considered by the IMF list as OFCs – such as Anguilla, the British
Virgin Islands, Gibraltar, Guernsey, the Isle of Man, Jersey, and Montserrat144.
The second group, in its turn, comprises mostly OFCs which obtain real profits
due to their low tax policies. As a consequence, it is natural that a great number of
countries here have a particular interest in keeping strong and active regimes based on
bank secrecy. In this sense, delays to improve internal bank regulation and
administration and to implement a more effective commitment regarding the access to
information by tax authorities is generally explained by the need to protect the
customers’ funds and information from a possible unlawful interference, as well as to
maintain their commercial goals.145 Here, it is important to notice that such delays are
directly correlated to the role and weight each of those economies have in the
international economic system.
It is possible to observe a concentration of financial havens in some geographic
regions, such as Latin America and Europe.146 Nevertheless, these jurisdictions do not
adopt a collective approach in the discussions regarding the use of OFCs as a safe hide
out for the proceeds of criminal money, losing the opportunity to make pressure towards
the maintenance of high levels of bank secrecy or the rejection of joining reform
programs which might pose a burden to their financial sector due to the decrease of
their competitiveness. A proof of that is that “virtually all of the 42 jurisdictions
identified as having offshore financial activities have undergone an initial assessment by
the IMF”.147 Also, it is easy to observe that over the years those jurisdictions are starting
to agree and to internalize the international standards on the subject. As an example, it
is possible to see that the number of 23 NCCTs in 2001 was reduced drastically to 0 in
2006.148
143 RAWLINGS, Greg; BRIGITTE, Unger. Competing for…144 INTERNATIONAL MONETARY FUND. Offshore Financial Center ….145 ALBA, Ricardo. Offshore Centres of Latin America and the Caribbean: The need for a level playing field in search for integrity. Available at: http://www.freedomandprosperity.org/alba.pdf. Last accessed: 13 July 2007.146 In Africa, Asia and the Pacific OFCs are more dispersed.147 FINANCIAL STABILITY FORUM. Press Release, Ref no: 11/2005E. Available at: http://www.fsforum.org/publications/OFCpressreleasefinal_.pdf. Last accessed: 16 July 2007. 148 The unique research which still indicates some non cooperative country is the List of Uncooperative Tax Havens published by the OECD's Committee on Fiscal Affairs. Available at: http://www.oecd.org/document/57/0,2340,en_2649_37427_30578809_1_1_1_37427,00.html
5. QUESTIONS TO PONDER
1. How can financial havens conciliate the need for stronger control over their banking
system while also maintaining a significant level of attractiveness of their financial
sector?
2. What measures should be taken so as to minimize the negative effect of relaxing
bank secrecy legislations?
3. How can countries guarantee the compliance of the international standards
regarding bank secrecy by all states? What mechanisms should be devised to ensure
fair competition among different financial havens?
4. Is there a need to develop measures to hinder the use of financial havens as a safe
hideout for the proceeds of criminal activities on a casebycase basis?
5. What alternatives can be developed to make it harder for criminals to have access to
the financial system in a scenario characterized by loose legislations?
6. What should be the minimum standards required by jurisdictions to allow the disclosure of customer’s banking information to official authorities?
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