Mutual Trust in Regional and Interregional Cooperation on Counterterrorism: An Analysis of the EU and ASEAN Approaches.
As transnational crime has no regard to borders, competent authorities need to overcome the barriers the barriers of national jurisdictions and cooperate together. The UN and regional organisations, including the EU and ASEAN, have required States to criminalise transnational crime, including terrorism, and to implement effective measures to prevent, investigate, detect, prosecute and punish these offences. They have also required States to cooperate; cooperation being one of the key measures to ensure the effectiveness of States’ action.
The regional level is considered to be the most effective to harmonise legislation as well as to adopt and implement mechanisms of cooperation for security purposes. However, the nature and level of cooperation vary a lot depending on the regional framework considered. In the EU, this cooperation has been legally framed and institutionalised as well as associated with harmonisation of Member States’ legislation. By contrast, cooperation remains much more informal in ASEAN and is not associated with harmonization of legislation. Despite its low level of integration, ASEAN plays an increasing role in the region by leading efforts to create a regional legal architecture. ASEAN is the most successful regional grouping in the “developing world” and has a particular approach vis-à-vis terrorism. Both regions have therefore a legitimate ground and purpose in learning from each other (comparative regionalism) and in working together (interregionalism) in order to ensure – up to the capacities of each regions – the best response to terrorism.
The differences between the two regions are due to various factors, among which the unalike degree of trust between their respective Member States and their capacity to cooperate. Despite its absence in the constitutional treaties, “mutual trust” is a concept constantly used in the AFSJ, especially when police and judicial cooperation is at stake. Whereas its precise status, nature and consequences is still debated, mutual trust seems to have reached an institutional level and to have been transformed into legal expectations in the EU. By contrast, although trust is repeated in ASEAN declarations and objectives, it is less visible in practice between ASEAN Member States. Mutual trust is a fundamental yardstick in developing cooperation mechanisms. The highest the confidence in each other’s systems is, the more efficient the cooperation. Mutual trust serves to build bridges between national jurisdictions. In the EU, such mutual trust is based on common values and norms and implies the development of common minimum standards in the field including human rights norms. It rests of course also on other factors such as mutual understanding of the threat and each other’s particular legislation.
The compared regional analysis will highlight notable discrepancies in each region’s approach. The EU has gone through a tremendous institutional evolution by communitarising the AFSJ. The EU has adopted norms to facilitate cooperation based on common standards and mutual trust. With the numerous types of cooperation mechanisms, the EU adopted a two-fold objective, namely facilitating the cross-border cooperation and harmonising the HR standards. By contrast, ASEAN is still governed by the so-called ‘ASEAN Way’ based on consultation and consensus rather than on bargaining and give-and-take leading to deals enforceable in a court of law; on non-institutionalised processes; and on practice-based rules. These differences involve a clear lack of trust between Member States. This method is slowly and partially shifting towards a more institutional and rules-based approach. This comparative analysis will allow to conclude on the convergences and differences in the conditions and level of trust in each of the two regions in the field of terrorism and on their impact on the level of cooperation.
Based on this comparison, interregional challenges and prospects will be focused on. The EU has adopted a comprehensive approach combining human rights and security measures. Preserving such a balance when interacting with external actors is a serious challenge, especially when States tend to privilege security measures. The EU must adapt its objectives, priorities and means to the particularities of ASEAN while respecting its own standards. In this regard, mutual trust is an important factor in developing interregional collaboration. Since 1972, the EU developed economic ties with different ASEAN Member States and with the ASEAN Secretariat itself. Both regions have increasingly engaged in an interregional dialogue on different issues of interest, including terrorism. Here again, the criteria/conditions and the level of mutual trust developed between the two regions will be examined.
The EU and ASEAN are my case-studies (in the legal meaning of the term “case study”)
- Comparison between the EU and ASEAN can be made mainly looking at an earlier stage of the EU integration and the way ASEAN is today.
- Discussion on the common terminology to adopt in comparative regionalism.
- “Mutual trust”, as a social, political and legal concept, is discussed and framed to be used as an essential element in fostering intra-regional cooperation in the EU and ASEAN.
- Approximation of legislations is seen as a means or a way to replace mutual trust. The dimensions of mutual trust evolves from social, political to legal depending on the level of regional legal integration.
- Broad international norms on both terrorism and human rights protection have led to more specific norms on the former but much less on the later, especially in ASEAN. There is the danger.
- The identification of a shared objective is the primary element to build up trust in the two regions. Guaranteeing human rights however is the second necessary element in the EU while it is not in ASEAN.
- Cross-border cooperation becomes more efficient as approximation of legislations, including anti-terrorism norms and human rights ones, arises. And … or… vice versa.
- The form of mutual trust has a strong impact on the method of intra-regional cooperation in these two regions. Direct cooperation between competent national authorities has been institutionalised and legally framed in the EU while direct cooperation in ASEAN is based on interpersonal relations and mostly under the radar for law enforcement autorities.
- The lowest common determinator has paced the development of each regional organisation’s legal order (i.e. anti-terrorism and human rights norms) and of cooperation.
Terrorism has been striking severely in Europe and Southeast Asia. Facing this threat, the EU has adopted an approach combining human rights and security measures while ASEAN has not given any guidelines to its Member States yet (‘ASEAN Way’). Consequently, the EU needs to adapt its objectives, priorities and means to the particularities of ASEAN while respecting its own standards. In this regard, mutual trust is an important factor in developing interregional collaboration.
Trust is on everyone's lips: trust on our representatives, on our institutions, etc. Trust is essential between partners aiming to reach a common objective. Mutual trust does not fall from the sky, it needs to be built and nourished in order to exist and to pay off. It is only where there is trust that cooperation is effective, especially in police cooperation. Knowledge is the cornerstone in building up confidence and that inspiration often comes from different legal systems and practices.
This research will serve as a common ground leading to a better mutual understanding between the two regional organisations. The assessment of cooperation taking place within each region may lead to potential recommendations concerning legal instruments as well as practical measures that may be implemented in each region or in their mutual relations. Regional bodies and national authorities but more likely national competent authorities in the two regions could be interested by this analysis. A mutual knowledge of each other rules should serve as a background to develop cooperation within the two regions and between the two regional organisations. Moreover, this study can also be of particular interest to international institutions such as Interpol or the UN. This understanding will not only serve policy makers and practitioners, it may also serve NGOs advocating for a better protection of human rights in both regions and citizens to understand the mechanisms of cooperation implemented in criminal matters and to identify where potential infringements to human rights exist. All these actors would be able to improve their action in enhancing cooperation mechanisms and in promoting effective protection of fundamental rights, having a better knowledge of the mechanisms of cooperation.
This analysis will not only be useful at the horizontal level – between competent authorities within and between the regions - but also the vertical level - between the citizens and the public authorities.
Céline C. Cocq obtained a Law degree (2005) from the University of Lille II, a Master degree in International Humanitarian Law (2010) from the University Paul Cezanne (Aix-en-Provence), two University Diplomas in Criminology from the Institute of Criminology in Lille and Criminal Studies (2005 and 2011) and a LL.M. in Public International Law (2012) from the Université libre de Bruxelles.
From 2012 to 2015, she was a researcher on the European Commission’s FP7 SURVEILLE project. In this project, she studied the use of surveillance technologies for the prevention, investigation and prosecution of serious crime in different legal systems.
She is currently a PhD candidate at the Université Libre de Bruxelles and the University of Geneva. The provisional title of her PhD thesis is: “Mutual trust in the regional and interregional cooperation to counter terrorism: An analysis of EU and ASEAN approaches” (co-supervisors: Prof. Anne Weyembergh and Prof. Robert Roth).
She is also a member of the ECLAN (European Criminal Law Academic Network) team.
Her research focuses on substantive criminal law and criminal procedure dealing with serious crime, with a particular focus on terrorism. She specialises in regional cooperation mechanisms and on rationalisation of these mechanisms of cooperation; on counter-terrorism legal architecture(s) at the national and regional levels.
PhD fellow – GMF, Brussels (Belgium)
1 September 2017 – 30 June 2018
Intern in the Terrorism Prevention Programme - UNODC-ROSEAP (Regional Office for Southeast Asia and the Pacific), Bangkok (Thailand)
Legal analyst working on the counter-terrorism legal systems and measures implemented in the region
1 February – 31 July 2016
Intern at Europol – Data Protection Office, The Hague (The Netherlands)
Among various tasks, analysis of data retention regime analysis and legal analysis of topical issues of interest to Europol in enhancing the cooperation between Member States
1 August 2015 – 30 November 2015
Researcher on the European Commission FP7 SURVEILLE Project
Centre of European Law - Université Libre de Bruxelles, Brussels (Belgium)
Analysis of the legal and ethical aspect of the use of surveillance technologies – Comparative criminal law and European criminal law
1 June 2012 – 30 June 2015
Intern at the Embassy of France in Canada, Ottawa
Research on radicalisation of people leading to terrorism and development of mutual understanding. Project between the French and Canadian governments, especially their respective Ministries of Interior. Objective: to build interstate cooperation in this matter.
1 January – 31 March 2010
Study on minimum sanctions in EU Member States – JUST/2013/JPEN/PR/0047/A4
European Commission request - Contractor ECORYS with ECLAN (sub-contractor)
National report on France and ECLAN coordination
Evaluation of the Legal Framework Applicable to Combating Terrorism in the EU Member States
European Commission request - Contractor CSES with ECLAN (sub-contractor)
Legal analysis of the national reports
Pictet Competition on International Humanitarian Law, Winterton/Drakensberg (South Africa): Winner (team of three members), 14-22 April 2012
Merit Scholarship, CNOUS Lille (France), 2008-2009 and 2009-2010
“Finding a path through a multi-headed interregional relationship: The EU’s action vis-à-vis ASEAN region in criminal matters” in Mario Teló and Anne Weyembergh (eds.), The Supranational at Stake? The EU’s External Competence caught between Complexity and Fragmentation (forthcoming)
with Ora Szekely, “Comparative methods” in Jean-Frédéric Morin, Christian Olsson and Ece Özlem Atikcan (eds). Key Concepts in Research Methods (Oxford: Routledge, forthcoming).
“‘Information’ and ‘intelligence’: The current divergences between national legal systems and the need for common (European) notions” N.J.E.C.L., vol. 8, Issue 3, 2017, pp. 352-373.
with Francesca Galli, “The evolving role of Europol in the fight against terrorism at the EU level: Deficient flows of information and future prospects” in Saskia Hufnagel and Carole McCartney (eds.), Trust in International Police and Justice Cooperation (London: Hart International Series in Law and Society, 2017), pp. 125-148.
“Encryption and anonymisation online: Challenges for law enforcement authorities within the EU” in Tobias Bräutigam and Samuli Miettinen (eds.) Data Protection, Privacy and European Regulation in the Digital Age (Helsinki: Forum Iuris, 2016), pp. 178-204.
“Etre autochtone. Une spécificité prise en compte par les juridictions pénales canadiennes” in Odina Benoist (dir.), Justice et Diversité Culturelle (Aix en Provence: Presses Universitaires d’Aix-Marseille, 2016), pp. 87-110.
“The EU and ASEAN approaches in fighting terrorism: collaboration or cooperation?” in Countering Daesh Extremism. European and Asian Responses (Singapore: Panorama - Konrad-Adenauer-Stiftung, 2016), pp. 153-164.
with Francesca Galli, “Data retention regime within the EU: Reinventing a common framework after the CJEU ruling on the Digital Rights Ireland case?” European Journal of Policing Studies 4(1), September 2016, pp. 146-172.
“EU Data Protection Rules to Law Enforcement Activities: Towards an Harmonised Legal Framework?” N.J.E.C.L., Vol. 7, Issue 3, 2016, pp. 263-276.
“Transposition de la Résolution 2178 (2014) par la Belgique et la France: Vers une répression des combattants terroristes étrangers toujours plus préventive et fournie" Les Nouveaux Problèmes Actuels de Sciences Criminelles, vol. XXVI, Lextenso, 2015, pp. 171-191.
with Francesca Galli, “The use of surveillance technologies for the prevention, investigation and prosecution of serious crime”, EUI Department of Law Research, (SURVEILLE) 2015/41, 25 November 2015.
with Sarah Teo, “Countering Terrorism: Challenges and Opportunities in ASEAN-EU Cooperation” in Louise Fawcett, Frederik Ponjaert and Mario Telo (eds.) Interregionalism and the European Union. A post-revisionist approach to Europe’s place in a changing world (Farnham: Ashgate, 2015).
with Anne Weyembergh, Report on Belgium, in Kent Roach (ed.), Comparative Counter-Terrorism Law. The State of the Art (Cambridge: Cambridge University Press, 2015).
“Development of regional legal framework for intelligence and information sharing in the EU and ASEAN” Tilburg Law Review – Journal of International and European Law, Special Issue: Privacy and National Security in the Digital Age, vol. 20, n°1, 2015, pp. 58-77.
“Snowden’s Impact on ASEAN Relations”, Perspectives Internationales, Tribune “Asie”, 26 May 2014.
with Francesca Galli, “The catalysing effect of serious crime on the use of surveillance technologies for prevention and investigation purposes”, N.J.E.C.L., vol.4, 2013/3.
with Francesca Galli, “Comparative law paper on data retention regulation in a sample of EU Member States” SURVEILLE project (D4.3), 30 April 2013.
with Francesca Galli, “The use of surveillance technologies for the prevention and investigation of serious crimes” SURVEILLE project (D4.1), 31 October 2012.
ECLAN Member and Assistant Coordinator since 2012 (www.eclan.eu)