Asian Journal of International Law, 7 (2017), pp.

39–60
doi:10.1017/S2044251315000193
© Asian Journal of International Law, 2015
First published online 29 October 2015

The Value of International Law in Combating

Transnational Organized Crime in the
Asia-Pacific

Tom OBOKATA*
Keele University, United Kingdom
[email protected]

Abstract
This paper explores the value of international law in combating transnational organized
crime in the Asia-Pacific, with particular reference to the United Nations Convention
against Transnational Organized Crime. It begins by highlighting the definitions of
organized crime under national and international law. It then analyzes the extent to which
states in the Asia-Pacific have implemented the Convention, focusing on harmonization of
national criminal laws and procedures, mutual recognition of law enforcement decisions
and measures, as well as provision of technical assistance. The paper also touches upon the
protection of the human rights of victims and perpetrators of organized crime. The main
conclusion reached is that, although the implementation of international instruments
pertinent to transnational organized crime has not been an easy task in the Asia-Pacific,
they are slowly but surely making a difference on the ground. Therefore, their value should
not be dismissed completely.

The Asia-Pacific region1 is deeply affected by transnational organized crime. Major

crimes prevalent in the region include drug offences, trafficking in human beings,
counterfeit goods, medicines, wildlife,2 as well as timber.3 The annual profits generated
from these criminal activities are estimated to be around $90 billion in the Asia-Pacific
alone, which corresponds to “twice the GDP of Myanmar, eight times that of
Cambodia, and thirteen times that of Lao PDR”.4 Unlike ordinary crime, organized
crime flourishes because of the supply/demand dynamics. Illegal production and

* Professor of International Law and Human Rights, School of Law, Keele University, United Kingdom.
1. Acknowledging that there is no precise definition of “Asia-Pacific”, this paper examines state practice in
East Asia (e.g. China, Japan, and the Republic of Korea), South Asia (e.g. India, Nepal, and Pakistan),
Southeast Asia (e.g. Malaysia, the Philippines, and Thailand), and Oceania (e.g. Australia, Fiji, and New
Zealand).
2. United Nations Office of Drugs and Crime (UNODC), Transnational Organized Crime in East Asia and
the Pacific: A Threat Assessment (Vienna: UNODC, 2013) at Executive Summary.
3. Andreas SCHLOENHARDT, “The Illegal Trade in Timber and Timber Products in the Asia-Pacific”,
Australian Institute of Criminology, Research and Policy Series No. 89, 2008.
4. UNODC, supra note 2 at 1.

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 40 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

trafficking of goods, services, and human beings will continue as long as there is a
strong demand for them within and outside of the Asia-Pacific. There is, for instance,
strong demand for commercial sex in Southeast Asia, and sex workers have been
trafficked to meet such demand.5 Of particular concern is child sex tourism, which is
prevalent in the Mekong Sub-region.6 Some forms of organized crime, such as migrant
smuggling and human trafficking, are carried out by those known to victims (e.g. relatives,
friends, and other acquaintances),7 but more sophisticated criminal groups, including
triads based in Hong Kong, yakuza in Japan, as well as Iranian, Pakistani, and Nigerian
syndicates, are actively involved in drug-related offences, among others.8
While each state is responsible for combating organized crime at the national level,
its transnational nature means that domestic efforts alone are not sufficient, and that
closer and more effective international co-operation is necessary. Given the diversity in
domestic criminal laws and procedures, however, this is not an easy task. In the
Asia-Pacific region, for instance, a number of states9 are based on the common-law
tradition, while others10 are strongly influenced by the civil-law tradition. Such a
distinction cannot be drawn in many cases, as various states are also influenced by
other factors such as religion and local customs,11 or are based on hybrid systems.12
The international community has been taking various steps to bridge these differences,
the most significant one being the adoption of the United Nations Convention against
Transnational Organized Crime13 (UNTOC) in 2000. This treaty is extremely
important as it encourages states to implement more effective action against transna-
tional organized crime, not only through the enhancement of domestic criminal laws
and procedures, but also through the promotion of international law enforcement

5. Susan KNEEBONE and Julie DEBELJAK, Transnational Crime and Human Rights: Responses to
Human Trafficking in the Greater Mekong Subregion (Abingdon: Routledge, 2012).
6. ECPAT International, Combating Child Sex Tourism (Bangkok: ECPAT International, 2008); Kelly
COTTER, “Combating Child Sex Tourism in Southeast Asia” (2009) 37 Denver Journal of International
Law and Policy 493; Afrooz K. JOHNSON, “International Child Sex Tourism: Enhancing the Legal
Response in South-East Asia” (2011) 19 International Journal of Children’s Rights 55; and Melissa
CURLEY, “Combating Child Sex Tourism in South-East Asia: Law Enforcement Co-operation and Civil
Society Partnership” (2014) 41 Journal of Law and Society 283.
7. UNODC, supra note 2 at 21.
8. Ibid., at 56, 66, 67. See also UNODC, Patterns and Trends of Amphetamine-Type Stimulants and Other
Drugs: Challenges for Asia and the Pacific (Vienna: UNODC, 2013) at 11, 79, 92; Koh-Lin CHIN and
Roy GODSON, “Organized Crime and the Political-Criminal Nexus in China” (2006) 9 Trends in
Organized Crime 5.
9. They are Australia, Bangladesh, Bhutan, Brunei, the Cook Islands, Fiji, Hong Kong, India, Kiribati,
Malaysia, the Marshall Islands, Myanmar, Nauru, New Zealand, Niue, Pakistan, Palau, Papua New
Guinea, Samoa, Singapore, the Solomon Islands, Tokelau, Tonga, Tuvalu, and Vanuatu.
10. They include China, Cambodia, Japan, Indonesia, Macau, Mongolia, Timor-Leste, South Korea,
Taiwan, Thailand, and Vietnam.
11. States such as Brunei, Indonesia, and Pakistan are also influenced by the Islamic tradition, and local
customary laws are regarded as important in the South Pacific, such as the Cook Islands, Fiji, Papua New
Guinea, Samoa, and Tonga. See Esin ORUCU, “What is a Mixed Legal System: Exclusion or Expan-
sion?” (2008) 12 Electronic Journal of Comparative Law 1; Jennifer C. CARE, “Cultures in Conflict: The
Role of Common Law in the South Pacific” (2002) 6 Journal of South Pacific Law 1.
12. They include Nepal, the Philippines, and Sri Lanka. Orucu, supra note 11 at 16; L. Heckendorn
URSCHELER, “Innovation in a Hybrid System: The Example of Nepal” (2012) 15 Potchefstroom
Electronic Law Journal, online: <http://www.saflii.org/za/journals/PER/>.
13. 16 November 2000, 2225 U.N.T.S. 209 (entered into force 29 September 2003) [UNTOC].

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 the value of international law in combating transnational organized crime 41

co-operation. In the Asia-Pacific, approximately one half of states have ratified this
instrument since its adoption.14 This might be compared with Europe, the Americas, the
Middle East, or even Africa, where the vast majority of states have ratified it.15 There is
therefore scope to encourage states in this region to accept and implement
the relevant international standards stipulated in the UNTOC so that they can enhance
their domestic, regional, and international efforts to tackle transnational organized crime.
The purpose of this paper is to explore some of the key benefits of international law
pertinent to transnational organized crime in enhancing individual and collective
actions, with particular reference to the UNTOC and human rights law. It looks at the
harmonization of national criminal laws and procedures, the principle of mutual
recognition of law enforcement decisions and measures, technical assistance, and
protection of human rights, and analyzes how these are implemented by states in
the Asia-Pacific. Relevant examples from other regions are also presented for
comparison. The main conclusion is that the reluctance to abide by international law
on transnational organized crime as well as human rights law is a serious issue in the
Asia-Pacific compared to other regions of the world. However, the value of interna-
tional law should not be dismissed, as an increasing number of states are implementing
the relevant international standards with a view to promoting more effective actions.

i. harmonization of domestic criminal laws and

procedures
International law on transnational organized crime as represented by the UNTOC and
other instruments has been playing an important role in encouraging a degree of
harmonization in domestic criminal laws and procedures among states in the
Asia-Pacific. One way to do this is to promote common definitions to be used by the
relevant law-enforcement authorities. If organized crime offences and their serious
nature were understood consistently, this would naturally lead to smoother inter-state
co-operation in investigation, prosecution, and punishment, thereby reducing safe
havens for criminals.16 The UNTOC provides for a number of definitions in this
regard. It should be noted from the outset that this instrument does not stipulate a
definition of “organized crime” per se. Rather, it is to be understood as a “serious
crime” committed by an “organized criminal group”:

“Organized criminal group” shall mean a structured group of three or more persons,
existing for a period of time and acting in concert with the aim of committing one or more
serious crimes or offences established in accordance with this convention, in order to
obtain, directly or indirectly, a financial or other material benefit.17

14. Status of Ratification, online: United Nations Treaty Collection <https://treaties.un.org/pages/viewdetails.

aspx?src=ind&mtdsg_no=xviii-12&chapter=18&lang=en>.
15. Ibid.
16. Assistance in Harmonising National Legislation with the United Nations Convention against Organized
Crime and Protocol Thereto: Discussion Paper by the Secretariat, Working Group on Technical Assis-
tance, CTOC/COP/WG.2/2013/4, at para. 6.
17. Art. 2(a).

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 42 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

A popular perception of organized crime among the general public perhaps is the
involvement of large hierarchical criminal organizations like the Italian mafia, and
this was particularly evident in the United States, where La Cosa Nostra has been in
existence for some time.18 This perception was strongly influenced by the so-called
“alien conspiracy theory”, which portrayed the Italian mafia as “a coherent and
centralized international conspiracy of evil” which threatened the political, economic,
and legal systems of the US.19 The term “organized crime” was coined in that country
at the end of the nineteenth century, when the New York Society for the Prevention of
Crime used the term to describe gambling and prostitution.20 At that time
organized crime was understood as “illegal business deals involving politicians,
police officers, lawyers or professional thieves”, and not gangster- or mafia-type
criminal groups.21 This changed in the 1950s, when the term was used to describe
the Italian mafia. In any event, the aforementioned definition of “organized
criminal group” under the UNTOC does apply to this type of criminal organization.
In the Asia-Pacific region, perhaps a good example is the Japanese yakuza. These
criminal groups have hierarchical structures with the bosses (oyabun) at the
top, assisted by lieutenants (wakagashira) in the middle and lower-ranking criminals
at the bottom (kobun) of the pyramid.22
However, it was decided during the drafting stage of the UNTOC that the term
should also apply to non-hierarchical groups.23 Article 2(c) in this regard states that a
structured group does not need to have formally defined roles for its members, con-
tinuity of its membership, or a developed structure. This also seems to be in line with
the ongoing scholarly debates since the 1970s outside the US,24 which maintained that
the perception of organized criminal groups being hierarchical was too simplistic and
did not reflect the reality of contemporary organized crime.25 These scholars advocated
a so-called “network model”, in which organized crime was understood to be carried
out by a collection or network of individuals, small groups, and departments, etc.

18. Donald CRESSEY, Theft of the Nation (New York: Harper and Row, 1969); A.K. COHEN, “The
Concepts of Criminal Organisation” (1977) 17 British Journal of Criminology 97; Cyrille FIJNAUT,
“Organized Crime: A Comparison Between the United States of America and Western Europe” (1990) 30
British Journal of Criminology 321; Letizia PAOLI and Cyrille FIJNAUT, eds., Organized Crime in
Europe: Concepts, Patterns and Control Policies in the European Union and Beyond (Dordrecht:
Springer, 2006).
19. Michael WOODIWISS, “Transnational Organized Crime: The Global Reach of an American Concept”
in Adam EDWARDS and Peter GILL, eds., Transnational Organized Crime: Perspectives on Global
Security (London: Routledge, 2003), at 15.
20. Michael WOODIWISS, “Transnational Organized Crime: The Strange Career of an American Concept”
in Margaret BEARE, ed., Critical Reflections on Transnational Organized Crime, Money Laundering
and Corruption (Toronto: University of Toronto Press, 2003), at 5.
21. Paoli and Fijnaut, supra note 18 at 24.
22. David KAPLAN and Alec DUBRO, Yakuza: Japan’s Criminal Underworld (Berkeley: University of
California Press, 2003) at 115–16.
23. UNODC, Travaux Préparatoires of the Negotiation for the Elaboration of the United Nations Con-
vention against Transnational Organized Crime the Protocols Thereto (New York: United Nations,
2006), 7–18.
24. Jeffrey S. MCILLWAIN, “Organized Crime: A Social Network Approach” (1999) 32 Crime, Law and
Social Change 301, at 303.
25. Phil WILLIAMS and Roy GODSON, “Anticipating Organized and Transnational Crime” (2002) 37
Crime, Law and Social Change 311 at 332.

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 the value of international law in combating transnational organized crime 43

collaborating with each other in varying combination.26 In looking at actual

examples of organized criminal groups in the world, it is evident that many groups
are indeed not hierarchical. Contrary to popular image, the Medellin and Cali
cartels in Colombia consisted of “loose combinations of relatively small, family-based
cocaine manufacturing firms that merely joined forces in the early 1980s”.27 It has also
been argued that triads (Hong Kong) and “snakeheads” (China) operate largely
through informal networks rather than formal structural organizations.28 It is
therefore evident that the network model is equally important in understanding
organized crime.
A few more points should be highlighted in relation to the above definition.
According to Article 2(b), a “serious crime” means conduct constituting an offence
punishable by a maximum deprivation of liberty of at least four years. The UNTOC
also defines “criminal offences” as those which are committed for financial or material
benefit. This is an important element, because what distinguishes organized crime from
ordinary crime is the generation of longer-term, as opposed to immediate, profit or
benefit.29 This means that criminal proceeds are normally diversified and reinvested in
legal/illegal enterprises for the generation of sustained income for criminals.30 Many
organized criminal groups are therefore comparable to legitimate corporations and
businesses, except that they mainly operate in illegal markets.
An examination of state practice reveals that the definitions of an “organized
criminal group” vary in the Asia-Pacific region. Under the Crimes Act 1961 of New
Zealand (as amended), for instance,

A group is an organized criminal group if it is a group of 3 or more people who have as

their objective or one of their objectives (a) obtaining material benefits from the commis-
sion of offences that are punishable by imprisonment for a term of 4 years or more.31

This definition is broadly in line with the UNTOC. Tonga and Tuvalu have also
adopted similar definitions of a criminal group.32 In contrast, the Australian definition
refers to a group consisting of two or more people for commission of offences carrying
imprisonment of at least three years, without an element of material or financial

26. Gerben BRUINSMA and Wim BERNASCO, “Criminal Groups and Transnational Illegal Markets”
(2004) 41 Crime, Law and Social Change 79 at 79.
27. Letizia PAOLI, “The Paradoxes of Organized Crime” (2002) 37 Crime, Law and Social Change 51 at 68.
28. Phil WILLIAMS, “Organising Transnational Crime: Networks, Markets and Hierarchy” in Phil
WILLIAMS and Dimitri VLASSIS, eds., Combating Transnational Crime: Concepts, Activities and
Responses (London: Frank Cass, 2001), at 77; Sheldon ZHANG and Koh-Lin CHIN, Characteristics of
Chinese Human Smugglers: A Cross-National Study (Washington, DC: US Department of State, 2003);
Yiu-Kong CHU, The Triads as Business (London: Routledge, 2008); Sheldon ZHANG and Koh-Lin
CHIN, “Snakeheads, Mules and Protective Umbrellas: A Review of Current Research on Chinese
Organized Crime” (2008) 50 Crime, Law and Social Change 177.
29. Tom OBOKATA, Transnational Organized Crime in International Law (Oxford: Hart Publishing, 2010)
at 22.
30. Andreas SCHLOENHARDT, “Organized Crime and the Business of Migrant Trafficking: An Economic
Analysis” (1999) 32 Crime, Law and Social Change 203; Cressey, supra note 18 at 72.
31. s. 98A.
32. Counter-Terrorism and Organized Crime Act 2013 and Counter-Terrorism and Transnational Orga-
nized Crime Act 2009, respectively.

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 44 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

benefit.33 This makes the Australian definition much wider, as it can apply to a variety
of ordinary crimes such as theft and criminal damage, if committed by two or more
individuals. In addition, the Malaysian Penal Code 1997 speaks of a group of two
or more people, and a “serious crime” is defined as any offence punishable with
imprisonment of ten years or more.34 Here, the threshold is higher than the definition
of the UNTOC. Further, it is important to highlight that other states in the Asia-Pacific
region have no definition of “organized crime” or “criminal group” incorporated into
their domestic legislation. The main problem with these variations is that, if a crime is
understood differently, this would make regional and international law enforcement
co-operation more difficult, as states can refuse measures such as extradition or mutual
legal assistance in criminal matters if conduct is not regarded as sufficiently serious, for
instance. For those states without definitions, the principle of legality can also be
affected, which in turn has ramifications for the human rights of the perpetrators
of transnational organized crime. It is therefore helpful to have a common
understanding across the region, and international law on transnational organized
crime can fill this gap.
Another relevant aspect of harmonization is punishment. There are several advan-
tages in this. When various forms of organized crime attract similar punishments, this
can prevent forum shopping on the part of criminals (i.e. choosing jurisdictions where
the punishment regimes are weak and concentrating their criminal activities there).
This also reduces the situations where perpetrators receive different punishments for
the same offences committed, and therefore enhances a sense of fairness on their part.
Related to this, the harmonization of punishments can promote shared understanding
of its proportionality for organized crime.35 This is important as varied understanding
of proportionality can also hamper regional or international co-operation in criminal
matters and cause more political tensions, as will be shown below on the discussion of
the death penalty.
In reality, a great degree of discrepancy can be found among states in the
Asia-Pacific once again. For instance, a minimum of three years’ imprisonment is
imposed for human trafficking in South Korea,36 and sexual offences against children
carry between one and five years’ imprisonment in Cambodia.37 Corruption by public

33. Criminal Code Act 1995 as amended, s. 390.4.

34. Act No. 574, s. 130U.
35. On the topic of proportionality in punishment, see Hugo A. BEDAU, “Retribution and the Theory of
Punishment” (1978) 75 Journal of Philosophy 601; Andrew VON HIRSCH, “Proportionality in the
Philosophy of Punishment: From ‘Why Punish?’ to ‘How Much?’”(1990) 1 Criminal Law Forum 259;
Stephen T. PARR, “Symmetric Proportionality: A New Perspective on the Cruel and Unusual Punish-
ment” (2000) 68 Tennessee Law Review 41; Alice RISTROPH, “Proportionality as a Principle of Limited
Government” (2005) 55 Duke Law Journal 263; Morris J. FISH, “An Eye for an Eye: Proportionality as a
Moral Principle of Punishment” (2008) 28 Oxford Journal of Legal Studies 57; Ryan FLORIO, “The
Capital Punishment Fits the Crime: A Comparative Analysis of the Death Penalty and Proportionality in
the United States of America and the People’s Republic of China” (2008) University of Miami Interna-
tional and Comparative Law Review 43; Dennis J. BAKER and Lucy ZAO, “Responsibility Links, Fair
Labelling and Proportionality in China: Comparing China’s Criminal Law Theory and Doctrine” (2009)
UCLA Journal of International Law and Foreign Affairs 274.
36. Criminal Act 1953 as amended, art. 289.
37. Criminal Code 2009, arts. 341, 342.

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 the value of international law in combating transnational organized crime 45

officials (e.g. receiving bribes) is punishable with five years’ imprisonment in Japan,38
while the same offence attracts imprisonment of ten years in Tonga.39 It is therefore
apparent that the harmonization of national criminal laws and procedures as envisaged
by international law on transnational organized crime has not been fully implemented
by states in the Asia-Pacific.
These variations are understandable as the seriousness of crimes as reflected in
national legislation depends on the cultural, social, political, and economic under-
pinnings of each state. This is more evident in the Asia-Pacific as substantive criminal
laws and justice procedures vary among states, as shown above. Although it is extremely
difficult to expect that all states across the region will harmonize their punishment
regimes for all forms of organized crime, it is not impossible to find common ground by
establishing a minimum threshold, for instance. In this regard, the notion of serious crime
carrying a minimum of four years’ imprisonment under the UNTOC can serve as a good
starting point. The fact that this provision was included in the final text demonstrates
that participating states in the negotiation of this instrument, including those in the
Asia-Pacific, were willing to come to a consensus. It is therefore premature to dismiss the
value of international law on transnational organized crime altogether.
The situation in this region may be contrasted with Europe, in particular the
European Union (EU) and its Member States. Harmonization (or approximation
within the EU legal order) of national criminal laws and procedures has long been
recognized as a useful tool to combat serious crimes with a cross-border dimension,
including organized crime.40 This principle has been reaffirmed most recently in the
Treaty on the Functioning of the European Union (TFEU),41 which has restructured
the EU legal order, including the Area of Freedom, Security and Justice. A recent
attempt to facilitate harmonization in the area of organized crime is the adoption of
the EU Directive on Preventing and Combating Trafficking in Human Beings and
Protecting Its Victims.42 It provides for, among others, a common definition of human
trafficking to be adopted by Member States, which mirrors the one given by the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, attached to the UNTOC.43 This is a legally binding instrument, and the
TFEU allows for infringement proceedings to be instituted against Member States
that have failed to implement it.44 The enforcement mechanism in the case of

38. Penal Code 1907 (Act No. 45) as amended, art. 197.
39. Counter-Terrorism and Transnational Organized Crime Act 2013, s. 67.
40. On the topic of harmonization in the EU legal order, see Kai AMBOS, “Is the Development of a Common
Substantive Criminal Law for Europe Possible?” (2005) 12 Maastricht Journal of European and Com-
parative Law 173; Anne WEYEMBERGH, “The Functions of Approximation of Penal Legislation within
the European Union” (2005) 12 Maastricht Journal of European and Comparative Law 149; Anne
WEYEMBERGH, “Approximation of Criminal Laws, the Constitutional Treaty and the Hague Pro-
gramme” (2005) 42 Common Market Law Review 1567; Tom OBOKATA, “Key EU Principles to
Combat Transnational Organized Crime” (2011) 48 Common Market Law Review 801; Francesco
CALDERONI, Organized Crime Legislation in the European Union (Heidelberg: Springer, 2010).
41. [2012] OJ C 326/47 (entered into force 1 December 2009) arts. 82, 83.
42. [2011] OJ L 101/1.
43. 15 November 2000, 2237 U.N.T.S. 319 (entered into force 25 December 2003).
44. Art. 258.

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 46 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

non-implementation is therefore stronger within the EU. As of October 2014,

twenty-five Member States (out of twenty-eight) are said to have transposed this
Directive into their domestic legislation.45 Despite the fact that criminal laws and
justice processes also vary among the EU Member States (e.g. common-law and
civil-law traditions), they seem to have been more willing to recognize the value of
harmonization of national criminal laws and procedures in combating transnational
organized crime.46 There is of course no guarantee that the EU practice would work in
the Asia-Pacific or indeed in other regions, given that political, legal, social, and
economic developments are different across the globe. It is also important to recognize
that the implementation of EU measures is not always executed in a timely and effective
manner.47 However, all states, regardless of where they are located, certainly have a
common goal of effectively preventing and suppressing transnational organized crime,
and sharing good practices and difficulties is a constructive way to develop an
evidence-based strategy to tackle this crime. Therefore, states in the Asia-Pacific may be
able to benefit from the European experience.
As succinctly put by one of the Working Groups of the Conference of Parties to the
UNTOC, harmonization is not a one-time thing. Rather it is an ongoing process which
all State Parties should respect and implement to strengthen their action against
organized crime.48 It is encouraging to see in this regard that the principle of harmo-
nization is gradually being achieved in some areas. The prosecution and punishment of
human trafficking is a case in point. The definitions of human trafficking adopted in the
domestic legislation of Bhutan,49 India,50 Malaysia,51 Myanmar,52 the Philippines,53
Singapore,54 and Thailand55 are broadly in line with that of the Protocol on
Human Trafficking noted above, and this is a good example of international law on
transnational organized crime making a positive contribution. If they have not done so,
states in the Asia-Pacific could also consider adopting a definition of an organized
criminal group in line with the UNTOC. In addition to encouraging better inter-state
co-ordination in the investigation, prosecution, and punishment of organized crime,
this would also enhance the principle of legality, particularly the maxim nullum
crimen, nulla poena sine praevia lege poenali (no crime and no punishment without a

45. Mid-Term Report on the Implementation of the EU Strategy Towards the Eradication of Trafficking in
Human Beings, European Commission, COM (2014) 635 final.
46. It is worth noting here that the European Union is the only regional organization which signed
the UNTOC.
47. See, for instance, the European Commission’s Report, supra note 45, which talks about infringement
actions brought against some states for non-implementation; and Report from the Commission to the
Council and the European Parliament Based on Article 10 of the Council Framework Decision of 19 July
2002 on Combating Trafficking in Human Beings, European Commission, COM (2006) 187 final.
48. Working Group on Technical Assistance, supra note 16 at para. 11.
49. Penal Code 2004 as amended in 2011, s. 154.
50. Penal Code as amended in 2013, s. 370.
51. Anti-Trafficking in Persons Act 2007.
52. Anti-Trafficking in Persons Law 2005.
53. Expanded Anti-Trafficking in Persons Act 2012.
54. Prevention of Human Trafficking Act 2014.
55. Anti-Trafficking in Persons Act 2008.

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 the value of international law in combating transnational organized crime 47

pre-existing penal law). This in turn can boost public confidence in law enforcement at
the national level.

ii. the principle of mutual recognition

Another important role of international law on transnational organized crime is the
promotion of the principle of mutual recognition among states in the Asia-Pacific.
Simply put, it means that decisions made by law-enforcement or judicial authorities in
one state are to be recognized and implemented in another and, once again, this is a
relatively well-established concept within the EU legal order.56 Mutual recognition is
useful as it is not contingent upon the harmonization of national criminal laws and
procedures, although the latter certainly can facilitate the former. Rather, it operates
despite the differences in national criminal laws and procedures. Put succinctly, then,
harmonization aims to eliminate the differences while mutual recognition is about
respecting them. This perhaps is a preferred option for states generally as there is less
need to modify their national criminal laws and procedures in order to accommodate
others, thereby preserving their sovereignty. If states in the Asia-Pacific region can
develop a high level of mutual recognition, this would make inter-state law enforce-
ment co-operation much easier and quicker.
Although the term “mutual recognition” is not evident, the UNTOC indeed
recognizes this implicitly in its text. One example is the offences relating to organized
criminal groups under Article 5. The rationale for including this provision is to
prosecute and punish those who contribute to the operations of organized crime
groups without directly committing substantive offences.57 This can be used to target
mafia bosses who simply order their subordinates to commit various crimes, for
instance. Article 5 provides for two options for states to take: (i) agreeing to commit
serious crimes; and (ii) participating in the activities of organized criminal groups.
The first type is also known as “conspiracy” to commit a crime and is accepted by
common-law jurisdictions, whereas the second one is generally recognized in
civil-law jurisdictions.58 In the Asia-Pacific region, Australia,59 New Zealand,60
Singapore,61 and Papua New Guinea62 recognize the offence of conspiracy, while the
domestic legislation of China,63 Samoa,64 Taiwan,65 Tonga,66 and Tuvalu67 is

56. Obokata, supra note 40.

57. UNODC, Legislative Guides for the Implementation of the United Nations Convention against Trans-
national Organized Crime and Protocols Thereto (Vienna: UNODC, 2004) at 21.
58. Andreas SCHLOENHARDT, “Fighting Organized Crime in the Asia-Pacific Region: New Weapons,
Lost Wards”, Asian Law Institute, Working Paper Series No. 22, 2001 at 3–5.
59. Criminal Code Act 1995 as amended, s. 11.5(1).
60. Crimes Act 1961 as amended, s. 310.
61. Penal Code 2008 (Revised Edition), s. 120A.
62. Criminal Code 1974 as amended, ss. 515–17.
63. Criminal Law of the People’s Republic of China 1979 as amended, art. 294.
64. Crimes Act 2013, s. 146.
65. Criminal Code 1954 as amended, s. 154.
66. Counter-Terrorism and Organized Crime Act 2013, s. 66.
67. Counter-Terrorism and Transnational Organized Crime Act 2009, s. 66.

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 48 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

based on the participation model.68 Therefore the UNTOC is flexible as it allows

states to establish relevant offences in accordance with their domestic legal
systems, instead of strictly facilitating harmonization. The expectation here,
then, would be that states will respect each other’s legislation and facilitate
co-operation despite this difference. Having said this, it has been argued cogently
that the divergence can be a double-edged sword as it leaves too much discretion to
states.69
The mutual recognition principle is more relevant to law enforcement co-operation.
Extradition is a case in point. It is a process of handing over a suspect/criminal from
one jurisdiction to another for the purposes of prosecution and punishment. This is
conducted mainly through bilateral and/or multilateral treaties, as well as reciprocity
or comity.70 Another example is mutual legal assistance in criminal matters. This
facilitates, among other things, the gathering and exchange of intelligence/evidence and
the execution of orders (such as the search, seizure, and confiscation of criminal
proceeds) received from requesting states.71 Its scope is therefore wider than extradi-
tion. Other relevant measures include international co-operation in confiscation,72
joint investigations,73 the transfer of criminal proceedings,74 and general
law-enforcement co-operation.75 The UNTOC provides detailed guidance on these
measures.
Traditionally, requests for law enforcement co-operation have been transmitted
through diplomatic channels and/or letters rogatory, which were more time-consuming
and often led to delays in executing these requests.76 This has further been complicated
by the divergence in domestic criminal laws and justice procedures. The UNTOC
contains a number of provisions, which are designed to mitigate these and encourage
states to facilitate smoother and faster co-operation. Article 16(3), for instance,
provides that offences covered in the UNTOC are to be deemed extraditable,
thereby reducing the possibility of states designating certain offences political in nature
and preventing co-operation. Article 16(8) also provides for expediting extradition
procedures and simplifying evidentiary requirements. In addition, Article 27
encourages direct co-operation between law-enforcement agencies instead of
going through diplomatic channels. These measures, in effect, are designed to
encourage mutual trust and recognition among states. It is worth highlighting in
this regard that, some states in the Asia-Pacific, particularly among the Pacific

68. For further discussions, see Criminalization of Participation in an Organized Criminal Group: Back-
ground Paper by the Secretariat, Working Group on Technical Assistance, CTOC/COP/WG.2/2014/2.
69. Andreas SCHLOENHARDT, Palermo in the Pacific: Organized Crime Offences in the Asia Pacific
Region (Boston: Martinus Nijhoff Punishers, 2010) at 402.
70. Information Submitted by States in Their Responses to the Checklist/Questionnaire on the Imple-
mentation of the United Nations Convention Against Transnational Organized Crime for the First
Reporting Cycle, CTOC/COP/2008/CRP.7.
71. UNTOC, art. 18.
72. Art. 13.
73. Art. 19.
74. Art. 21.
75. Art. 27.
76. Obokata, supra note 29 at 64.

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 the value of international law in combating transnational organized crime 49

Islands, use a system of endorsement of extradition warrants which reduces the

amount of time to execute.77
At the time of ratification or accession, states can opt to use the UNTOC as a
framework to facilitate inter-state law-enforcement co-operation in the absence of the
pre-existing treaties. In relation to extradition, this is particularly important in
the Asia-Pacific region as there is currently no comprehensive regional treaty on the
subject, unlike Europe, Africa, or the Americas.78 There are two subregional treaties on
mutual legal assistance: the South Asian Association for Regional Cooperation
(SAARC) Convention on Mutual Legal Assistance in Criminal Matters,79 and the
Association of Southeast Asian Nations (ASEAN) Treaty on Mutual Legal Assistance
in Criminal Matters.80 Nevertheless, these instruments are inevitably limited to
the Member States of the SAARC and ASEAN. In order to facilitate more effective
co-operation within and outside the Asia-Pacific, therefore, the UNTOC can play
a more prominent role.
In practice, not many states in the region are using the UNTOC as a framework. At
the time of the first reporting cycle in 2008, of fifty-nine states which declared to
use this instrument as a legal basis for extradition, only three of them were from the
Asia-Pacific.81 Similarly, in relation to mutual legal assistance, out of eighty states
which said they would use Article 18 as a legal basis, nine were from the region.82
These facts indicate that there has not been enough inclination to rely on international
law on transnational organized crime to facilitate law enforcement co-operation.
Indeed, it has been reported that the number of bilateral agreements is higher in Asia
compared to Africa or the Americas.83
While it is important to acknowledge the importance and usefulness of these
bilateral agreements, the UNTOC is still beneficial for many reasons. Bilateral
agreements may reflect political, economic, and other issues of bilateral concern,
often leading to the adoption of different languages and provisions depending on
the states in question. This can result in a fragmented, rather than integrated,
approach to combating transnational organized crime as different measures might
be taken. To illustrate this with some examples, while a refusal to extradite its
own nationals to Mongolia is mandatory for South Korea, it is discretionary with
others, including India and Vietnam.84 In a similar vein, Australia exercises
criminal jurisdiction over (i.e. prosecute) its nationals if it refuses extradition to
Hong Kong, Indonesia, and the Philippines, but it will do so only upon request

77. Asian Development Bank (ABD) and Organization for Economic Co-operation and Development
(OECD), Mutual Legal Assistance, Extradition and Recovery of Proceeds of Corruption in Asia and the
Pacific (Mandaluyong City/Paris: ADB/OECD, 2007) at 73.
78. Bilateral and Multilateral Co-operation Arrangements and the Co-ordinating Functions of the Central
Authorities, Working Group on International Cooperation, CTOC/COP/WG.3/2014/2 at para. 19.
79. 3 August 2008, online: SAARC: <http://saarc-sec.org/SAARC-Conventions/63/>.
80. 29 November 2004, online: ASEAN <http://agreement.asean.org/home/index/2.html>.
81. They were Cambodia, China, and the Philippines. Information Submitted by States, supra note 70.
82. Ibid. They were Australia, Cambodia, China, Indonesia, Malaysia, Myanmar, New Zealand, the
Philippines, and Thailand.
83. Working Group on International Cooperation, supra note 78 at paras. 14, 15.
84. ADB and OECD, supra note 77 at 39.

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 50 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

by others such as Malaysia.85 All of these may lead to undesirable consequences such as
impunity, different treatments for perpetrators, and an increased possibility of forum
shopping. These issues can be mitigated if states use a single instrument like the
UNTOC with the same rules applicable to all Parties. Further, this treaty is more
useful in bridging diverse legal traditions as it can nurture common understanding
(harmonization) and mutual trust (mutual recognition) and saves time for states,
particularly those without pre-existing bilateral agreements, as there would be less
need to draft numerous agreements. Therefore, the value of international law on
organized crime should not be underestimated once again.

iii. technical assistance

In addition, international law on transnational organized crime is beneficial as it
provides a framework to facilitate technical assistance. This is particularly important in
the Asia-Pacific as the majority are developing states which may not have sufficient
resources, expertise, and capacity to combat transnational organized crime more
effectively.86 Article 29 of the UNTOC places a clear obligation on states to assist each
other in the areas of research, operational training, and information exchange, as well
as extradition and mutual legal assistance. Article 30 also obliges them to provide
financial and other assistance to developing states for capacity building. This makes
it clear that wealthy developed states in the Asia-Pacific and elsewhere have the
responsibility to assist others. Indeed, this does happen in practice. In 2012, for
instance, the government of Japan provided financial and technical assistance to states
including Myanmar and the Philippines so that they could enhance their capability to
address crimes such as drug and human trafficking.87 The US government has
also implemented technical assistance on cross-border financial investigation in
Bangladesh, the Maldives, Nepal, Pakistan, and the Philippines.88 More of these efforts
should be encouraged in the region.
In addition, as envisaged by Article 30 of the UNTOC, the role of international
organizations in providing technical assistance should be emphasized. The
most important one is United Nations Office on Drugs and Crime (UNODC), which
provides a variety of assistance measures globally, including in the Asia-Pacific region.
In 2012, for instance, the UNODC Regional Office for Southeast Asia and the Pacific
hosted legislative drafting workshops on international co-operation in the Philippines
and Laos, and this led to the actual enactment of legislation on extradition and mutual
legal assistance in these states.89 It has also provided legislative assistance relating to

85. Ibid., 38.

86. Roderic BROADHURST and Nicholas FARRELLY, “Organized Crime Control in Asia: Experiences
from India, China, and the Golden Triangle” in Letizia PAOLI, ed., The Oxford Handbook of Organized
Crime (Oxford: Oxford University Press, 2014), at 649.
87. Ministry of Foreign Affairs, Japan’s Official Development Assistance White Paper 2013 (Tokyo: Min-
istry of Foreign Affairs, 2013) at 91.
88. US Department of State, International Narcotics Control Strategy Report: Volume II—Money Laun-
dering and Financial Crimes (Washington, DC: US Department of State, 2015) at 6.
89. Working Group on Technical Assistance, supra note 16 at para. 29.

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 the value of international law in combating transnational organized crime 51

trafficking and the smuggling of human beings to forty-five Member States of the Bali
Process,90 the majority of which are from the Asia-Pacific region.91 In addition, the
UNODC in 2014 worked with states in the Asia-Pacific to establish the Asset-Recovery
Inter-Agency Network.92
Although it is important to recognize these and other initiatives being undertaken in
the Asia-Pacific region by the UNODC, what should be encouraged is more proactive
involvement of regional organizations such as ASEAN and the SAARC. Having
effective regional mechanisms/arrangements can enhance solidarity and mutual trust
among states in the Asia-Pacific. While ASEAN has adopted the Declaration on the
Prevention and Control of Transnational Crime93 in 1997 and the Plan of Action
to Combat Transnational Crime94 in 1999, the bulk of its activities seem to be
concentrated on having practitioner/ministerial meetings without implementing
more practical measures for inter-state co-operation and capacity building. The same
conclusion can be reached in relation to the SAARC. A good starting point perhaps is
the establishment of the Center to Combat Transnational Crime by ASEAN, which
was envisaged in the Plan of Action but has not materialized as of this writing.
A lack of financial resources within the Asia-Pacific is a major problem, but this
should not be an excuse not to assist each other, as there are ways to mitigate this.
Effective legislative frameworks and procedures for confiscation of criminal proceeds
are crucial in this regard. As noted above, the annual profits made from organized
crime in the region amount to $90 billion approximately, and this pot of money can
and should be returned to the states in the Asia-Pacific to enable them to strengthen
domestic and regional capacities to tackle organized crime. This can also send a strong
message to criminals that they cannot benefit from their criminal activities. The first
international instrument touching upon this is the Convention Against Illicit Traffic in
Narcotics and Psychotropic Substances,95 but the UNTOC applies to organized crime
generally, and therefore provides a better framework. Under Article 12, states have to
enhance their domestic efforts to confiscate criminal proceeds, while Article 13 places
an additional obligation to facilitate international co-operation for this purpose.
Finally, sharing the confiscated proceeds with other states as well as international
organizations is envisaged under Article 14.
In terms of steps to be taken, in addition to criminalizing money laundering and
authorizing the relevant bodies, including the judiciary, to initiate the confiscation of
criminal proceeds, states in the Asia-Pacific must sufficiently address issues such as
bank secrecy, tax avoidance, obstruction of justice, and corruption, all of which

90. Online: <http://www.baliprocess.net/>.

91. Provision of Technical Assistance to States in the Implementation of the United Nations Convention
Against Transnational Organized Crime and the Protocols Thereto: Report of the Secretariat, CTOC/
COP/2014/11 at para. 10.
92. Activities of the United Nations Office on Drugs and Crime to Promote the Implementation of the
Provisions on International Cooperation in the United Nations Convention Against Transnational
Organized Crime: Report of the Secretariat, CTOC/COP/2014/10 at para. 34.
93. 20 December 1997. The ASEAN Secretariat, ASEAN Documents on Combating Transnational Crime
and Terrorism (Jakarta: ASEAN, 2007) at 9.
94. 23 June 1999, ibid., at 23.
95. 20 December 1988, 1582 U.N.T.S. 95 (entered into force 11 November 1990), art. 5.

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 52 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

contribute to the generation of criminal proceeds. They should also establish a specialized
agency staffed with sufficiently trained law-enforcement officials. In addition, financial
investigations should be conducted in parallel with criminal investigations into organized
crime, so that the relevant authorities can identify and trace criminal proceeds sooner
rather than later. Further, more proactive co-operation and communications with private
financial and related institutions, which are likely to be in contact with criminal proceeds,
must be facilitated. Regionally, the establishment of the Asset Recovery Inter-Agency
Network noted above is a positive step forward, but more practical training and
intelligence sharing should accompany this. Once again, the willingness of states in the
Asia-Pacific to observe and implement harmonization and mutual recognition is
important in order to enhance their capacity to identify and confiscate criminal proceeds.

iv. the protection of human rights

Finally, international law is also important in protecting the human rights of both
victims and perpetrators of organized crime. In relation to victims, some forms of
organized crime such as human trafficking, sexual and labour exploitation, as well as
child sex tourism clearly violate their human rights, and victim protection must
constitute an integral part of action against these crimes. From a practical point of
view, sufficient protection will naturally encourage victims to trust the authorities and
become more willing to co-operate with them in criminal investigations and proceed-
ings against perpetrators. Unfortunately, international law on transnational organized
crime is weak in this regard. It is important to acknowledge that Article 25 of the
UNTOC does touch upon victim protection and assistance. It obliges states to provide
appropriate measures, including compensation, and to reflect victims’ views during
criminal proceedings. Nevertheless, its language is not strong, as can be seen from the
phrases such as “within its means” and “subject to its domestic law”, leaving open
the possibility of states not providing sufficient protection. While the Protocol on
Human Trafficking attached to the UNTOC provides for protection of privacy,
assistance during criminal proceedings, protection of the physical and mental well-
being of victims, and temporary/permanent residence permits for trafficked victims,96
the relevant provisions suffer from the same problem as Article 25, and the
instrument’s scope is inevitably limited to victims of human trafficking.
This means that international law on transnational organized crime must be
supplemented by international human rights law. The benefit of using this branch of
international law is that it covers all victims of organized crime with a human rights
dimension. The International Covenant on Civil and Political Rights97 (ICCPR), for
instance, obliges states to “ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity”.98 In relation to
human trafficking, the United Nations Human Rights Council explicitly acknowledged

96. Arts. 6, 7.
97. 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976) [ICCPR].
98. Art. 2.

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 the value of international law in combating transnational organized crime 53

that this provision applied to the victims of this crime,99 and it seems reasonable to
assume that the same is true for other forms of organized crime with a human rights
dimension. For those states which have not ratified the ICCPR, there are other human
rights treaties, such as the ILO Forced Labour Convention,100 the Convention on the
Elimination of All Forms of Discrimination Against Women,101 the Convention on the
Rights of the Child,102 and its Protocol on Sale of Children, Child Prostitution, and
Child Pornography,103 which place relevant obligations to protect the affected victims.
A wide variety of measures should be taken to protect the victims of organized
crime. First and foremost, their life and physical/mental wellbeing must be protected
and restored. It has been well established that state responsibility remains even when
these violations of human rights have been committed by non-state actors,104 and this
should apply to perpetrators of organized crime. If these victims are to participate in
criminal investigations and proceedings, then their identity and safety must be
guaranteed through, among other things, effective witness protection schemes,
coupled with other relevant assistance including interpretation/translation, legal
assistance, safe accommodation, as well as temporary residence permits in cases
where these victims are foreign nationals. Moreover, access to compensation must be
guaranteed to victims of crime. These are some of the measures which are established
under international human rights law.105
A similar picture emerges in relation to the human rights of perpetrators of
organized crime. The UNTOC does not contain extensive provisions on the rights
of defendants and therefore must be supplemented by international human rights
law. In addition to widely debated and scrutinized human rights such as the right
to liberty and security, and prohibition against torture, inhuman, or degrading
treatment,106 an important issue in the context of law enforcement against transna-
tional organized crime is the use of special investigative techniques such as controlled
delivery, surveillance, interception of communications, and undercover operations,
and their impact on one’s right to privacy. While Article 20 of the UNTOC encourages
states to use these measures in order to promote intelligence-led law enforcement,
it does not mention any relevant human rights norms and principles at all, and this
raises a great degree of concern. This shortcoming is mitigated by international human
rights law. For instance, the UN Human Rights Committee, which monitors the
implementation of the ICCPR, has stated that in order to justify interferences with
the right to privacy, states must specify in detail the circumstances under which such

99. Resolution 20/1: Trafficking in Persons, Especially Women and Children: Access to Effective Remedies
for Trafficked Persons and Their Right to an Effective Remedy for Human Rights Violations, A/HRC/20/
L1 (2012).
100. 28 June 1930, 39 U.N.T.S. 55 (entered into force 1 May 1932).
101. 18 December 1979, 1249 U.N.T.S. 3 (entered into force 3 September 1981).
102. 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990).
103. 25 May 2000, 2171 U.N.T.S. 227 (entered into force 18 January 2002).
104. See, for instance, the landmark case of Velasquez Rodriquz v. Honduras, Inter-Am.Ct.H.R. (Ser. C) No. 4
(1988).
105. See Tom OBOKATA, Trafficking of Human Beings from a Human Rights Perspective: Towards a
Holistic Approach (Leiden: Martinus Nijhoff Publishers, 2006).
106. The ICCPR, arts. 7, 9, 10.

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 54 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

interferences may be permitted in their national legislation.107 In other words, these

measures should have a clear legal basis. In addition, it has been established that any
interference must be necessary and reasonable, in that it must be proportionate to the
legitimate aim pursued.108 While acknowledging that crime prevention is a legitimate
aim, the UN High Commissioner for Human Rights has also endorsed points raised by
the Human Rights Committee.109 More recently, in March 2015, in recognizing the
need to discuss and examine the right to privacy in the contexts, among others, of
surveillance and its lawfulness, the UN Human Rights Council established the Special
Rapporteur on the Right to Privacy.110 Another important issue is one’s right to a fair
trial. It has been recognized, for instance, that undercover operations could amount to
entrapment if a crime was instigated by the law-enforcement agencies, and that this
would undermine the right to a fair trial.111 The use of improperly obtained evidence in
court also raises an issue with respect to this, particularly when it is the sole evidence
relied upon and/or the accused did not have an opportunity to challenge its
authenticity.112
In looking at state practice in the Asia-Pacific, discrepancies are once again evident.
While China,113 Hong Kong,114 Japan,115 Myanmar,116 New Zealand,117 Papua
New Guinea,118 South Korea,119 Taiwan,120 Thailand,121 and Tonga122 enacted
legislation on special investigative techniques, many of these laws are not
comprehensive enough in that they do not cover all forms of these measures. In the
Cook Islands and Fiji, the relevant measures are limited to certain crimes such as
participation in criminal organization or drug trafficking,123 and there is no clear legal
basis at all in Bangladesh, Sri Lanka, and Vietnam.124 These examples go against the
aforementioned human rights norms. This may be compared with the UK’s Regulation

107. General Comment No. 16 (Right to Privacy) (1988), HRI/GEN/1/Rev.1 at para. 8.

108. See, for instance, Toonen v. Australia, Communication No. 488/1992, CCPR/C/WG/44/D/488/1992 at
para. 8.3; General Comment No. 31 (The Nature of the General Legal Obligation) (2004), CCPR/C/21/
Rev.1/Add.13 at para. 6.
109. The Right to Privacy in the Digital Age, A/HRC/27/37 (2014).
110. Resolution 28: Human Rights, Democracy and the Rule of Law, A/HRC/28/L.24 (2015).
111. See, for instance, Teixeira de Castro v. Portugal (1998), Application No. 25829/94; Ludi v. Switzerland
(1992), Application No. 12433/86; Khudobin v. Russia (2006), Application No. 59696/00.
112. Schenk v. Switzerland (1988), Application No. 10862/84; Khan v. United Kingdom (2000), Application
No. 35394/97.
113. Criminal Procedural Law 1979 as amended in 2012, art. 148.
114. Interception of Communications and Surveillance Ordinance 2006.
115. Communications Interception Law 1999.
116. Privacy International, Right to Privacy in Myanmar (London: Privacy International, 2015) at 5–6.
117. Search and Surveillance Act 2012.
118. Protection of Private Communications Act 1973.
119. Protection of Communications Secrets Act 2002.
120. Communications Protection and Surveillance Act 1999 as amended.
121. Telegraph and Telephone Act 1934.
122. Police Act 2010.
123. ABD and OSCE, The Criminalisation of Corruption in Asia and the Pacific (Mandaluyong City/Paris:
ADB/OECD, 2008) at 166 and 185.
124. Ibid., at 107, 474–5, 515.

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 the value of international law in combating transnational organized crime 55

of Investigation Powers Act 2000 (as amended), which governs surveillance,

interception of communications, covert human intelligence sources, as well as the use
of CCTV. This undoubtedly is a better model in terms of legality and clarity. In relation
to entrapment, Australia,125 India,126 and Singapore127 do not recognize the defence of
entrapment in criminal proceedings, in line with the common-law tradition that the
manner in which evidence was obtained is not relevant.128 However, judges have
discretion not to admit evidence obtained by entrapment in some jurisdictions.129
In contrast, the reduction of sentences is implemented in China instead of excluding
evidence obtained as a result of entrapment.130 In summary, all of these highlight
the need to promote the relevant human rights principles more widely.
In addition, asset recovery or the confiscation of criminal proceeds entails some
human rights issues. The first question which should be asked is whether criminals can
retain the proceeds of organized crime under the rubric of “right to property”, which is
recognized by the Universal Declaration of Human Rights.131 While this right is not
stipulated in the legally binding universal instruments such as the ICCPR or the
International Covenant on Economic, Social and Cultural Rights,132 it is recognized
regionally in Africa,133 the Americas,134 and Europe.135 A lack of clear guidance and
jurisprudence in the Asia-Pacific region prompts an examination of other regions, and
it becomes evident that one does not have the right to property obtained as a result of
criminal activities. This right is regarded as a “qualified right”, in that in can be
restricted in the public interest or as prescribed by law.136 What is evident, then, is that
criminal proceeds are not generally protected by human rights law. It is also worth
pointing out that the temporary seizure of property, including vehicles and aircraft
used for criminal activities, is not regarded as deprivation of such property.137
However, as with the right to privacy, confiscation must be proportionate to the

125. Ridgeway (1995) 184 CLR 19.

126. R.K. Anand v. Registrar of the Delhi High Court (2009) 8 SCC 106.
127. Law Society of Singapore v. Tan Guat Neo Phyllis [2008] 2 SLR 239; Mohamed Emran bin Mohamed
Ali v. Public Prosecutor [2008] 4 SLR 411.
128. John D. JACKSON and Sarah J. SUMMERS, The Internationalisation of Criminal Evidence: Beyond the
Common Law and Civil Law Traditions (Cambridge: Cambridge University Press, 2012) at 153.
129. This is the case for Australia and India.
130. The Supreme Court Document 324 (2008).
131. 10 December 1948, G.A. Res. 217 A (III), art. 17.
132. 16 December 1966, 993 U.N.T.S. 3 (entered into force 3 January 1976).
133. African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S. 217 (entered into force
21 October 1986), art. 14.
134. American Convention on Human Rights, 22 November 1969, 1144 U.N.T.S. 143 (entered into force
18 July 1978), art. 21.
135. Protocol 1 to the European Convention on Human Rights, 20 March 1952, E.T.S. No. 9 (entered into
force 18 May 1954), art. 1.
136. Art. 1 of the Protocol 1 to the ECHR states: “No one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and by the general principles of inter-
national law; 2) The preceding provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or penalties.” Similar language can be
found in art. 21 of the ACHR and art. 14 of the African Charter.
137. Air Canada v. United Kingdom (1995), Application No 18465/91.

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 56 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

legitimate aim pursued.138 This means that some of the principles noted above, such
as the existence of a legal basis and its clarity, are pertinent.139
The confiscation regimes can be divided roughly into two categories. The first is
conviction-based confiscation, which is widely utilized by states. As the name suggests,
a confiscation order is issued by the competent authorities, normally the judiciary,
after a perpetrator is convicted of organized crime. In this sense, this type of
confiscation can be seen as an additional form of punishment. In addition, some states,
particularly common-law jurisdictions including Canada, Ireland, the UK, and the
US,140 also rely on so-called non-conviction-based confiscation through civil
proceedings. This can be facilitated without a perpetrator being convicted, if the
domestic court determines, on the balance of probabilities, that the proceeds in
question have derived from criminal activities. Here, the guilt is associated with
property and not the offenders. The UNTOC does not directly refer to conviction-
or non-conviction-based confiscation in its text. However, it recognizes that confisca-
tion is to be implemented in accordance with the domestic law of each State Party,141
thereby respecting the diversity in confiscation mechanisms. In the Asia-Pacific region,
Australia,142 Brunei,143 New Zealand,144 and the Philippines145 support the use of
non-conviction-based confiscation.
Although it has been argued that non-conviction-based confiscation through civil
proceedings is a good tool to combat organized crime,146 some human rights concerns
have been raised simultaneously. Many states have a problem with this type of
confiscation, as the lower burden of proof is used and it is up to those affected to prove
that the property was not obtained as a result of criminal activities.147 In Europe,
human rights complaints have also been lodged against various states before the
European Court of Human Rights, arguing that non-conviction-based confiscation is
criminal in nature and therefore that presumption of innocence (as part of the right to a
fair trial) should apply. While this is indeed a convincing argument, it has been held
that the purpose of the civil regime is to recover assets illegally possessed, and not to
determine one’s guilt.148 Consequently, non-conviction-based confiscation is
generally regarded as not breaching the relevant human rights norms and principles.
However, it was simultaneously recognized that sufficient procedural safeguards

138. Phillips v. United Kingdom (2001), Application No.41087/98 at para. 51.

139. See, for instance, Adzhigovich v. Russia (2009), Application No. 23202/05, where the European Court
held that Russia violated the right to property as there was no clear legal basis for confiscation.
140. Arvinder SAMBEI, Civil Forfeiture (Confiscation in Rem): Explanatory and Impact Study (Strasbourg:
Council of Europe, 2012) at 5.
141. Art. 12(9).
142. Proceeds of Crime Act 2002.
143. Criminal Asset Recovery Order 2012.
144. Criminal Proceeds (Recovery) Act 2009.
145. Anti-Money Laundering Act 2001.
146. Angela V.M. LEONG, The Disruption of International Organized Crime (Aldershot: Ashgate, 2007) at
77.
147. Sambei, supra note 140 at 9.
148. See Engel v. the Netherlands (1976), Application Nos. 5100/71, 5101/71, 5102/71, 5354/72, and 5370/
72; Walsh v. United Kingdom (2000), Application No. 33744/96.

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 the value of international law in combating transnational organized crime 57

(public/open hearings, disclosure of the prosecution’s case, and an opportunity to

rebut) must be in place.149 Anything short of these would therefore be regarded as
human rights violations.
Finally, punishments for organized crime, with the death penalty in particular, remain
a serious concern in the Asia-Pacific. The death penalty is retained for some crimes, most
notably drug trafficking. This is true for states including Bangladesh,150 Brunei,151
China,152 India,153 Indonesia,154 Laos,155 Malaysia,156 Myanmar,157 Pakistan,158
Singapore,159 Sri Lanka,160 Thailand,161 and Vietnam.162 One does not have to be
reminded of the execution of eight drug traffickers in Indonesia in April 2015, which
generated strong protests and political tensions among affected states. Although there are
ongoing movements towards abolition globally, international human rights law does not
technically prohibit the death penalty, as it still allows states to retain this punishment for
the most serious crimes.163 A problem here is the definition or understanding of “most
serious crime”. Some states regard drug trafficking as sufficiently serious to merit the
death penalty, while many others do not, and there does not appear to be any political will
to come to a consensus in the Asia-Pacific, demonstrating the strong force of state
sovereignty. It should also be noted that only a handful of states in the Asia-Pacific have
ratified the Second Optional Protocol to the International Covenant on Civil and Political
Rights, Aiming at the Abolition of the Death Penalty.164 Therefore, there is much to be
done to facilitate shared understanding of various forms of organized crime and their
seriousness in the Asia-Pacific, as stressed above. This, however, is not the reason to
discount the value of the international human rights law and movement. Instead, it should
be seen as a renewed opportunity to work towards abolition of this punishment.
Another dimension to the death penalty is the principle of non-refoulement. In a
landmark case of Soering v. United Kingdom (1989), the European Court of Human
Rights held that the so-called “death row phenomenon”, which might entail, among
other things, prolonged mental and physical abuse and suffering, could amount to
inhuman and degrading treatment,165 and therefore that the applicant could not be

149. Phillips v. United Kingdom, supra note 138 at paras. 43–7.

150. Narcotics Control Act 1990, s. 19.
151. Misuse of Drugs Act 1987 as amended, arts. 3–5, 15–16.
152. Criminal Law of the People’s Republic of China 1997 as amended, art. 347.
153. Narcotic Drugs and Psychotropic Substances Act 1987, art. 31A.
154. Law on Psychotropic Substances 1997, art. 59.
155. Penal Law 1990 as amended in 2005, art. 146.
156. Dangerous Drugs Act 1952 as amended, art. 39B.
157. Narcotic Drugs and Psychotropic Substances Act 1993, art. 20.
158. Control of Narcotic Substances Act 1997, ss. 6–9.
159. Misuse of Drugs Act 1973 as amended, ss. 15–33.
160. Poisons, Opium and Dangerous Drugs (Amendment) Act 1984, s. 5.
161. Narcotics Act 1979 as amended, s. 65.
162. Penal Code 1999 as amended, arts. 193, 194.
163. ICCPR, art. 6(2).
164. 15 December 1989, 1642 U.N.T.S. 414 (entered into force 11 July 1991). As of May 2015, these states
are Australia, Mongolia, Nepal, New Zealand, the Philippines, and Timor-Leste.
165. Application No. 14038/88.

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 58 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

extradited. The UN Human Rights Committee also expressed a similar opinion.166

Moreover, those states which have abolished the death penalty are to refrain from
returning individuals to others which still retain this punishment.167 While these
are good decisions from a human rights perspective, one practical implication of
non-refoulement in this context is that it may make international law enforcement
co-operation, such as extradition and mutual legal assistance, difficult, as requested
states may not hand over criminals if there is a risk of them receiving the death penalty
in requesting states. Interestingly, Australia,168 the Cook Islands,169 Fiji,170
Hong Kong,171 Palau172 Samoa,173 and Vanuatu174 can refuse extradition or mutual
legal assistance in criminal matters for this reason. Bilateral extradition treaties,
including those between South Korea and India/the Philippines/Thailand/Vietnam,
as well as those between Thailand and Malaysia/the Philippines, also provide for
discretionary refusal of extradition.175 In addition, other states refuse extradition
as a matter of practice. Japan and Mongolia, for instance, can refuse extradition if
requesting states impose the death penalty for corruption-related cases.176
One way to mitigate this difficulty and diffuse political tensions, while simulta-
neously maintaining the spirit of human rights and international co-operation, is to
rely on aut dedere aut judicare, a well-established principle under national and
international law. Simply put, if a state refuses extradition, then that state should bring
prosecution in its jurisdiction instead. Interestingly, some states were in favour of
including this principle in cases involving the death penalty during the drafting stage
of the UNTOC, but an explicit reference was not made in the end.177 However, Articles
15 and 16 provide for this in the broad context, and similar provisions exist in other
treaties such as the 1988 Narcotics Convention178 and the United Nations Convention
Against Corruption.179 Although states which still retain the death penalty may not be
entirely happy, aut dedere aut judicare is a sensible alternative as it ensures that
perpetrators of organized crime are punished one way or another. It must be noted,
however, that the nature of obligation under this principle varies depending on the
nationalities of perpetrators. Under the said Articles of the UNTOC, prosecution is

166. Maksudov and Rakhimov v. Kyrgyzstan, Communication No. 1461, 1462, 1476, & 1477/2006, CCPR/
C/93/D/1461,1462,1476&1477/2006 at para 12.6.
167. Judge v. Canada, Communication No. 829/1998, CCPR/C/78/D/829/1998 at para. 10.4; G.T. v.
Australia, Communication No. 706/1996, CCPR/C/61/D/706/1996 at paras. 8.2, 8.3; Kwok Yin Fong v.
Australia, Communication No. 1442/2005, CCPR/C/97/D/1442/2005 at para. 9.4.
168. Extradition Act 1988, s. 15B; Mutual Assistance in Criminal Matters Act 1987, s. 8(1A).
169. Extradition Act 2003, s. 19.
170. Extradition Act 1977, s. 11(4).
171. Mutual Assistance in Criminal Matters Ordinance 1997, s. 5(3).
172. Extradition and Transfer Act 2001, s. 6.
173. Extradition Act 1974, s. 1(4).
174. Extradition Act 2003, s. 17(2)(e).
175. ADB and OECD, supra note 77 at 39.
176. Ibid., 58.
177. Travaux Préparatoires, supra note 23 at 149.
178. Arts. 4 (Jurisdiction) and 6 (Extradition).
179. 31 October 2003, 2349 U.N.T.S. 41 (entered into force 12 December 2005), arts. 42 (Jurisdiction) and 44
(Extradition).

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 the value of international law in combating transnational organized crime 59

mandatory if a state does not extradite its own nationals. However, the obligation
is weak in relation to foreign nationals as the term “may” suggests.180
Another way is to fully observe and implement assurances that one would not
receive the death penalty. Some states in the Asia-Pacific region indeed facilitate
extradition or mutual legal assistance if clear assurances are given, although the
designated authorities to give such assurances vary. In Indonesia, assurances must be
given by the highest judicial authority of a requesting state, whereas Hong Kong
and Japan merely require a statement from the central authority and a consular/
diplomatic representative.181 Giving assurances is controversial, as its effectiveness
is not certain in many cases.182 In order to avoid violations of human rights, it has
been held, among other things, that the reliability of assurances must be assessed and
that there should be an effective mechanism to monitor and enforce these
assurances.183 If all states in the Asia-Pacific can observe these and other relevant
principles, then it would become much easier to promote harmonization and mutual
trust/recognition, while at the same time respecting the human rights of perpetrators of
transnational organized crime. However, mutual recognition would also mean that
those states which do not impose the death penalty must respect others which do.
Ironically, despite diplomatic/political protests against this punishment, mutual
recognition is observed in practice as states generally respect sovereignty and do
not directly interfere with the domestic legal processes of others. The Indonesian
incident noted above affirms this.
Despite this current picture, it is encouraging that the attitudes of states towards
the death penalty are changing, albeit slowly, compared to the past. It was noted
by Amnesty International in 2014 that a half of all states in the Asia-Pacific have
abolished the death penalty.184 Fiji did this in February 2015 for all crimes, in line
with the recommendations made by the UN Human Rights Council during the
Universal Periodic Review.185 Mongolia is also in the process of amending its
domestic legislation to abolish this punishment.186 The number of states carrying
out executions also seems to be steadily declining. In India, for instance, the
Supreme Court commuted the sentence for fifteen people because of delays in
processing mercy petitions by the President,187 and the Narcotic Drugs and
Psychoactive Substances Act 1985 was amended to change the mandatory death
penalty to an optional one.188 In Myanmar, all death sentences were replaced by life

180. The same language is adopted in other treaties.

181. ADB and OECD, supra note 77 at 58.
182. International Organisation for Migration, Information Note on the Principle of Non-Refoulement
(Geneva: International Organisation for Migration, 2014) at 8.
183. Maksudov and Rakhnimov v. Kyrgyzstan, supra note 166 at para. 12; Alzery v. Sweden, Communication
No. 1416/2005, CCPR/C/88/D/1416/2005 at para. 11. See also Othman v. the United Kingdom (2012),
Application No. 8139/09 at para. 188–9; Extension of Precautionary Measures (N. 259/02) Regarding
Detainees in Guantánamo Bay, Cuba (2005) by the Inter-American Commission on Human Rights.
184. Amnesty International, Death Penalty and Executions 2015, ACT/50/001/2015 at 37.
185. Ibid., at 31.
186. Ibid., at 41.
187. Shatrughan Chauhan & Anr v. Union of India & Ors, (2014) 1 SCC 1.
188. Amnesty International, supra note 184 at 32.

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 60 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w

imprisonment,189 and South Korea has been suspending executions in recognition of

the ongoing international human rights discourse and movement.190 Although there is
still a long way to go in abolishing the death penalty in the Asia-Pacific, these examples
also show that the international human rights law and movement have played, and
continue to play, an important role in achieving this goal. Therefore, it once again
seems reasonable to conclude that international law does matter in this region.

v. conclusion
This paper has examined the key benefits of international law on transnational
organized crime to enhance domestic and regional actions, with a particular focus on
the UNTOC, as well as international human rights law in protecting the human rights
of the victims and perpetrators of organized crime. It has been shown that, compared to
other regions, states in the Asia-Pacific are more reluctant to observe and implement
core principles such as the harmonization of domestic criminal laws and procedures
and mutual recognition. The protection of human rights also raises serious concerns in
some areas. Consequently, the desired effects or impacts of the relevant branches of
international law have not yet been fully realized in the Asia-Pacific.
Nevertheless, it is premature to dismiss the value of international law in combating
transnational organized crime, as it has also been shown that it is making tangible
differences in various areas, and that it is possible to find some common ground. While
it is important to respect political, legal, cultural, and social differences among states in
the Asia-Pacific, strict adherence to state sovereignty is not constructive, given the
transnational and sophisticated nature of transnational organized crime. While
the usefulness of bilateral agreements/arrangements should be recognized, it has also
been argued throughout this paper that multilateral approaches are even more
beneficial. To this end, ratification and/or implementation of the UNTOC are a step in
the right direction. Alternatively, if states prefer a regional approach, then they could
bring forward regional treaties on various aspects of law enforcement co-operation,
which sufficiently reflect the relevant international standards as represented by
the UNTOC and apply to all states in the Asia-Pacific. The regional organizations
such as ASEAN and the SAARC should also play a more active role in the fight
against transnational organized crime in order to enhance solidarity and mutual
trust in the region. The time is therefore ripe for states in the Asia-Pacific to recognize
the value of international law and devise a more coherent and effective strategy
individually and collectively.

189. Ibid., at 41.

190. Sangmin BAE, “South Korea’s De Fact Abolition of the Death Penalty” (2009) 82 Pacific Affairs 407.

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