UC Irvine Journal of International, Transnational, and Comparative Law

This Article enquires into the case of one of the most comprehensive, far-reaching, most deeply penetrating, and most punitive of TLOs: antimoney laundering. Drawing on an intensive study at a moment when its governing norms and methodologies of implementation were undergoing revision and expansion, as well as on observation and participation in AML/CFT activities over three decades, the Article brings rich empirical evidence to bear on two theoretical issues. First, despite its seemingly successful institutionalization, the AML TLO exhibits many deficiencies and imposes extensive costs on the private and public sectors, and harms upon the public. Why doesn’t it fail? Second, the pervasiveness and penetration of the AML TLO indicates it may constitute a particular species of “disciplinary” TLOs. To address these issues, the Article, first, briefly sketches the thirty-year development and workings of the AML TLO; second, considers its benefits, costs, deficiencies and harms; third, confronts the puzzle of its persistence; and, fourth, concludes by arguing that the AML TLO may be distinctive insofar as (1) it has a foundational assumption of recalcitrant actors who must be monitored to reduce social harms which (2) legitimates a pervasive surveillance apparatus that is (3) yoked to punitive criminal institutions and practices which (4) lead to an elaborate repertoire of discipline that (5) has been multiplied to include states, financial institutions (e.g. banks), non-state collective actors such as charities, organized crime families, and individuals such as lawyers, accountants, and everyday participants in their myriads of transactions in an integrated global financial system. Those singular properties may in fact be shared substantially by other TLOs directed at crime. The site of criminal justice thereby encourages a more differentiated understanding of TLOs in 21st century settings.

To date, “transnational criminal law” has been the dominant paradigm for explaining and mapping rules on corruption in the international legal literature. Transnational criminal law is presented as a system of law descending from multilateral crime control treaties or a field or order that emerges through international political processes of regime formation. Transnational criminal lawyers identify and describe cross-border legal rules, and seek to evaluate them against liberal norms of democratic governance and individual civil and political human rights. This Article details the limits of transnational criminal conceptions of “anticorruption” through a study of proposed changes to Australian laws on corporate foreign bribery. Drawing on primary and secondary documentary sources, domestic and international, it shows that the emerging antipodean rules are only partially transnational, as that term is understood in transnational criminal law theory. Likewise, multilateral “suppression conventions” and related soft laws are but one impetus for the proposed changes to Australian federal anticorruption legislation. Rather, as the transnational legal ordering literature suggests, a recursive process appears to be at work between international organizations and local legislators, as well as transnational non-state actors, both charities and businesses. This process is marked by moments of borrowing from (former) patrons, the US and the UK. However, it is also punctuated by themes of modernization, economic efficiency, and reputation. In addition, Australian anti-corruption activities may result not just in changes to national criminal law, but also in the development of “new” – and controversial – techniques of governance.

Not a day goes by without a sensationalist report on the travails of modern slaves, be it the saga of Indian teenagers trafficked into sex work as depicted in the Hollywood movie Love Sonia, or workers trafficked into the UK’s nail bar and car wash shops, or the 2018 Global Slavery Index released by the Walk Free Foundation founded by mining magnate Andrew Forrest which estimates that there are 40.3 million modern slaves around the world. Anti-slavery groups remind us that modern slavery afflicts almost everything that we consume on a day-to-day basis. This includes basic commodities like tea, sugar, coffee, prawns, chicken, eggs, onions, mushrooms, “slave chocolate” from Cote D’Ivoire and cotton from Uzbekistan. Exploitation is also rife in wartime captivity in Nigeria, bonded labour in Pakistan, fishing boats in Thailand, households employing overseas migrant domestic workers, Qatari construction sites with Nepali workers, the brick kiln industry in India, Brazilian garment factories employing Bolivian workers, in Unilever’s supply chain in Vietnam, and in Kenyan flower and green bean cultivation.

There is a crack in everything — that’s how the light gets in Leonard Cohen, Anthem In an era often characterized as one of growing convergence of the laws governing criminal activities in different countries, the issue-area of cannabis policy undergoes processes of fragmentation and polarization. Some countries continue to criminalize all forms of medical and recreational uses of cannabis. Others have sought to “separate the market” for cannabis from that of other drugs by decriminalizing the possession of small amounts of marijuana, authorizing its use for medical purposes, and establishing administrative measures for taxing and regulating the commercial sale of the drug. This Article explores the causes and consequences of the decline of the transnational legal order of cannabis prohibition. It shows how the erosion of the regulatory capacities of this transnational legal order reflects deepseated political conflicts over the legitimacy of prohibition norms in this field. It analyzes the ways in which conflicting regulatory approaches become institutionalized as a consequence of the structural mismatch between the actors framing the meaning of cannabis prohibition norms at the international level and the actors implementing these norms in national and local contexts. Finally, the Article shows how this transnational legal order has created path-dependent trajectories of legal change that continue to shape domestic drug policies.

Prison standards are an important element of transnational criminal justice. This Article shows how legal standards governing prison conditions emerged at the international and regional levels and considers how, increasingly, they have gained legitimacy. It then describes how these standards are applied in a way that contributes to a recognizable transnational legal order in respect of prison conditions, which has real impact at the national level. The Article pays close attention to the transfer of prisoners between states, as a mechanism that operates transnationally and, in the process, enhances the importance of international prison standards. It concludes that the benefits of common prison standards are mixed. On the positive side, they have the potential to give states that are asked to extradite suspects, or transfer sentenced prisoners, leverage to demand the improvement of prison conditions in the receiving states. There is, however, a risk that states will accept and implicitly endorse sub-standard prison conditions in order to rid themselves of troublesome offenders.

A transnational legal order (TLO) authoritatively shapes “the understanding and practice of law” in a specific area of social activity, involving both state and civil society actors, and linking national, regional, and international levels. We argue that a TLO has emerged and settled since 1945 around capital punishment. Our analysis of the death penalty TLO treats “bottom-up” and “top-down” effects as interconnected, addresses the creation of legal order at both national and international levels, and emphasizes the recursivity linking developments at both levels. We trace the development of death penalty abolition from its origins in the immediate aftermath of World War II. Because the practical effects of abolition—in shaping legal and penal practice—necessarily occur at the national level, the analysis focuses on the international, transnational, and domestic factors that lead states to end capital punishment. After describing the emergence of a TLO abolishing the death penalty, we offer a new way of measuring the global and country-specific activities of transnational advocacy groups (Human Rights Watch and Amnesty International). We incorporate that measure in an analysis of data from about 150 countries. The central hypothesis is that making the TLO on capital punishment effective through abolition in national law requires modes of political action that overcome majoritarian public support for retention. We suggest two domestic institutional features that make abolition more likely despite retentionist popular opinion: proportional representation in the legislature and independent courts. We also suggest that transnational non-governmental organizations (NGO) and some regional organizations can support the move to abolish. The data analysis is largely consistent with these propositions and brief case studies illustrate the principal mechanisms.