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OAS Conventions, Documents and Resolutions
The Inter-American Convention on Mutual Assistance in Criminal Matters (1996)
The Convention on Mutual Assistance in
Criminal Matters was finalised in May 1992, but did not enter into
force until April 1996. The text of the Convention can be accessed here, however some notable articles are mentioned below:
- Article 1 mandates that state parties to
the convention undertake to render to one another mutual assistance in
criminal matters;
- Article 5 concerns double criminality and
states that assistance shall be rendered even if the act that gives
rise to the request is not punishable under the legislation of the
requested state. (Although where the act is not a criminal offence in
the requested state, requests for the immobilisation/sequestration of
property and searches/seizures may be refused);
- Article 6 dictates that the relevant act must be punishable by at least one year under the requesting state's legislation;
- Article 7 proscribes what constitutes
assistance - notably searches, taking of testimonies, transfer of
detained persons and any other procedure agreed between the two states;
- Article 9 states that assistance may be
refused if fulfilling the request may lead to double jeopardy, if the
request is discriminatory in nature or the act is political in nature.
The Inter-American Convention against Terrorism (2003)
The Convention against Terrorism entered
into effect in October 2003, having been drafted in March 2002, and has
been signed by all member states and ratified by twelve. The full text
can be accessed here but in brief, notable articles include:
- Article 4a requires the implementation of
a regulatory and supervisory regime for institutions and other entities
deemed particularly susceptible to being used for the financing of
terrorist activities emphasising the use of customer identification,
the reporting of suspicious or unusual transactions and record keeping;
- Article 4c requires establishment and
maintenance of a financial intelligence unit in each member state and a
system of co-operation and information exchange amongst the competent
authorities;
- Article 7 mandates promotion of
co-operation and the exchange of information to improve their controls
on the issuance of travel and identity documents;
- Article 8 requires law enforcement
authorities to establish and enhance channels of communication in order
to 'facilitate the secure and rapid exchange of information';
- Article 9 calls for greater mutual legal assistance;
- Article 11 enshrines the inapplicability of the political offence exception.
General Assembly Resolutions
At each of the Regular Sessions of the
General Assembly, Resolutions are endorsed and published. The
Resolutions are easily accessible on the OAS website although their
content is particularly vague and any attempt to decipher further
clarity requires locating the many other documents cross-referenced.
Below is a chronological selection of Resolutions that mention
proposals that will exert influence on the policy laundering issue
areas, although there is no information provided as to the format that
these influences will adopt.
AG/Res
2004 (XXX1V -0/04) Adoption of a Comprehensive Inter-American Strategy
to Combat Threats to Cyber-security: A multi-dimensional approach to
creating a culture of Cyber-Security (June 2004):
The verbose nature of the title
appropriately reflects the content of the Resolution itself, which
collates the contents of several meetings held on the issue of
cyber-security.
The actual Resolution is contained in
Appendix A and is entitled the "Comprehensive Inter-American
Cyber-security Strategy" and 'pools the efforts and expertise the
Inter-American Committee against Terrorism (CICTE), the Inter-American
Telecommunications Commission (CITEL) and the Meeting of Justice
Ministers or Attorney Generals of the Americas (REMJA)'. The strategy
focuses on a multi-disciplinary approach, specifically emphasising:
- Information awareness of users and operators of the internet regarding security measures;
- Fostering of public-private partnerships due to the private ownership of most of the information infrastructures;
- Identifying, evaluating and
stimulating the adoption of technical standards and best practices that
ensure the security of information transmitted over the internet and
other communications networks;
- Fostering the adoption of
cybercrime policies that will protect internet users and respect the
privacy and individualised rights of users.
Each of the three bodies mentioned above concentrates on a particular area and accordingly:
- The CICTE discusses the "Alert, Watch and Warning Network".
- CITEL focuses on the
'Identification and Adoption of Technical Standards for a Secure
Internet Architecture' and the development of an effective
cyber-security strategy which requires a partnership between government
and industry and integration between technology based cyber-security
solutions and international standards. CITEL intends to promote
information sharing among member states and will identify and evaluate
technical issues relating to network security. Ultimately, CITEL will
highlight security standards of particular importance and recommend
endorsement of those standards by member states by helping
administrations adopt policies and practices that encourage network and
service providers to implement technical standards for secure networks.
- REMJA's goal is the Contribution
to the Comprehensive Inter-American Cyber-Security Strategy, through
the initiatives of the Group of Government Experts on Cyber-crime (the
Experts Group) which will focus upon assisting member states to combat
cyber-crime by ensuring that law enforcement and judicial authorities
have the legal tools necessary to investigate and prosecute such
offences.
Declaration on Security in the Americas (October 2003)
This declaration was issued by the
foreign ministers at the close of the Special Conference on Hemispheric
Security in Mexico City. The declaration was prepared by the Permanent
Council Committee on Hemispheric Security and is extremely wide ranging
in scope outlining all the issues which the organisation wishes to
tackle. Once again however, the means to achieving these ends are not
mentioned.
For the purposes of policy laundering, the relevant paragraphs are:
- Paragraph 22 concerning
terrorism, which underscores the states' commitment to the
"universalization and effective implementation of current international
conventions and protocols relating to terrorism";
- Paragraph 23. which calls for
information exchange and the broadest possible mutual legal assistance
to prevent and suppress the financing of terrorism;
- Paragraph 24, which calls for
reinforcement of existing efforts with regard to transportation
security within the Hemisphere with ICAO and IMO.
- Paragraph 25 concerning
trans-national crime, which mandates for exchange of information,
mutual legal assistance and extradition;
- Paragraph 26, which calls for the development of a culture of cybersecurity in the Americas
- Paragraph 30, concerning the combating of money laundering.
AG/Res 1967 (XXXIII-O/03) Transparency and Confidence and Security Building in the Americas (June 2003):
This is one example of many annual
resolutions concerning 'Transparency and Confidence and Security
Building'. The text of the resolution reveals to some extent the
importance of control and security building measures -- which are
mentioned frequently in the annual resolutions on the topic. The member
states are required to apply standardised control and security building
measures (CSBMs), submit reports on their application and discuss
existing and future CSBMs and the resolutions act as a reminder of
this.
The 2003 resolution however also
mentions OASIS -- the Organisation of American States Information
System. The resolution calls for the General Secretary to make this
communication network system operational in order to facilitate the
instantaneous exchange of information on security matters.
The resolution also highlights the
co-operation that exists between international governmental
organisations and the Permanent Council is instructed to continue "to
encourage the exchange of experiences in the area of confidence- and
security-building measures with other regions, which may include the
exchange of information between the Committee on Hemispheric Security
and other international organizations working on the subject, such as
the UN, the Organization for Security and Co-operation in Europe
(OSCE), and the Association of South-East Asian Nations Regional Forum
(ARF)". Further, the Permanent Council is requested to "hold the next
round of OAS-OSCE consultations and OAS-ARF consultations".
AG/Res 1553(XXVII-O/98) Hemispheric Cooperation to Prevent, Combat and Eliminate Terrorism (June 1998):
This early resolution also represents
one of many annual resolutions sharing the same title. The text of the
resolution does not reveal much as to the exact content of the
'hemispheric co-operation' although there are specific references to
information sharing specifically, the Permanent Council is instructed
to "continue its study of the recommendations and proposals made at the
Meeting of Government Experts held in May 1997 to examine ways to
improve the exchange of information and other measures for cooperation
among member states to prevent, combat, and eliminate terrorism".
Permanent Council Documents
The Permanent Council constitutes a
number of committees whose respective subject areas are largely
relevant to the policy laundering issues. Whilst the documents produced
by the Permanent Council have to be approved by the General Assembly
prior to implementation, their content is highly relevant in that the
Permanent Council dictate much of what is discussed and agreed upon by
the GA at their annual meetings, as confirmed by the OAS Charter. Below
are some relevant documents and the committees that produced them:
United States National Strategy to Secure Cyberspace, Presented by the Delegation of the United States (Committee on Hemispheric Security, October 2002)
The Committee on Hemispheric Security
covers cyber security. The U.S. has been particularly active in
promoting cyber-security since the latter end of 2002 and has advocated
repeatedly the "need" for the OAS member states to implement a cyber
security policy akin to that developed by the Council of Europe in the
Cybercrime Treaty.
The U.S. National Strategy to Secure
Cyberspace represents the U.S. vision of a national strategy to combat
cyber security threats, incorporating plans for various categories from
home users to national priorities and global proposals. The content
clearly demonstrates the U.S.'s efforts and determination to push for
global standards in this area.
In relation to policy laundering,
concerns arise regarding the emphasis on information sharing in and
between both the private sector and at a governmental and global level.
The strategy actively promotes the use of "supervisory control and data
acquisition systems" (SCADAs) in various sectors as relevant to the
promotion of cybersecurity. Once again, however, the document does not
reveal the exact nature of the information to be shared. The strategy
does mention on two occasions that the government should engage in
discourse with civil liberty groups and privacy advocates, which would
suggest that the strategy does entail implications for personal
information and privacy.
In addition, the strategy also
recommends large enterprises expand the means of authentication of
their network users through methods such as smart cards and biometrics.
U.S National Strategy to Secure Cyberspace: Statement delivered to the Committee on Hemispheric Security
on December 2, 2002 by Ms. Michele G. Markoff Senior Coordinator for
International Critical Infrastructure Protection Policy, United States
Department of State:
This document outlines comprehensively
the U.S. view on the manifestation of a cyber security threat and
various proposals on how to combat this threat. In brief,
- The U.S. stresses the
'interconnectedness' of the globe and the necessary implication that
'we will only be as secure as the least secure county or business to
which we are -- even remotely -- connected'.
- The U.S. also states that because
there is not yet a good understanding of the practical impacts of cyber
attacks, we must therefore think of this problem in not only economic
terms but also in national security terms.
- The U.S. wants 'all states to
take tangible steps to reduce the risk to critical national and global
information infrastructures'. It 'feels it is particularly important
the states of the OAS demonstrate early co-operative progress in this
area as a model for all regions'.
- The U.S. plan to enhance security
involves ensuring effective criminalisation of misuse of information
technology, education and awareness and increased public private sector
partnership. It also stresses that information sharing for early
detection is essential although traditional methods of collection and
dissemination are insufficient given the breadth of the threat and the
speed of attack.
- The 'Way Forward' that the U.S.
envisages is for all member states to ensure that their laws and
procedures are at least as comprehensive as those in the Council of
Europe CyberCrime Convention and to accede to that Convention when it
becomes open to non-EU countries.
- The member states are also urged
to look at plans of actions adopted by other regional bodies on this
issue particularly APEC Telecommunications Ministers Statement in May
2002.
Committee on Juridical and Political Affairs
Topics considered by the Committee on
Juridical and Political Affairs include justice, terrorism, probity and
ethics and representative democracy. For the purposes of this project,
the 'Working Group to prepare the Draft Inter-American Convention
against Terrorism' is relevant in that it was involved in the
preliminary drafting of the Convention against Terrorism.
The list of documents provided by the
Committee relating to the drafting of the Convention reveals the
process of gradual formation of the Convention but very little as to
the development of the content.
There were however two interesting
documents publicly available relating to 'Member States' contributions
to and comments on the Draft Inter-American Convention for the
Prevention and Elimination of Terrorism':
- Primarily, the United States' contribution to
this revealed an emphasis on measures 'such as the exchange of
information' and also the removal of the availability of a 'political
offence' exception to extradition and mutual legal assistance requests
in connection with terrorist offences. This suggestion was implemented
into the Convention at Article 11.
- Secondly, Canada's contribution to the Convention
requested that the activities of armed forces of a state should be
expressly excluded from the scope of application of the convention.
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