The Challenges of Illegal Trafficking in the Mediterranean Area (Legal Studies in International, European and Comparative Criminal Law, 9)

The book deals with illicit trafficking in the Mediterranean, seen as a borderline issue between mobility and security under a strongly interdisciplinary approach. The opening part is dedicated to issues that transversally concern illegal trafficking: criminological, criminal law, criminal procedure, but also international law issues. This part presents a kind of general theory of illegal trafficking, showing its recurring aspects and identifying the legal and criminal-political issues that would be best addressed by a unified approach to the matter. The other parts are devoted to presenting, instead, a special part overview of illegal trafficking. The second and the third section are devoted, in particular, to illegal traffics having human beings as their objects. More specifically, the second part examines smuggling of migrants, which has a central - criminological and criminal-political - relevance among the illegal traffics taking place in the Mediterranean. The third part dealswith the neighbouring theme of human trafficking, especially in its connection with the problem of labour exploitation. Finally, the fourth part focuses on some trafficking in goods, offering a selected and representative overview of some of the most significant forms that such trafficking can take: tobacco trafficking, drug trafficking and trafficking in cultural goods. Preface Contents Illicit Trades of Persons and Goods in the Mediterranean and Transnational Criminal Organizations 1 Movements in the Mediterranean: Yesterday and Today 2 The Emergence of Poly-criminal Organizations 3 Plurality of Organizational Forms of Illicit Trades in the Mediterranean 4 Normative Paths to Counter Illicit Trades: The European standards of penal protection 5 The Importance of the Relationship Between Illicit Trafficking and Criminal Organizations in Supranational Sources 6 Focus: Trafficking in Human Beings and Criminal Organizations in Five European Justice Systems (Italy, Portugal, Greece, Spa... 7 Summary Remarks References Part I: Jurisdictional Issues Territorialising the Extraterritorial: The Role of `Suppression ́ Conventions 1 Introduction 2 Expanding the Territoriality of Offences in Suppression Conventions 2.1 Jurisdictional Trends in the Suppression Conventions 2.2 Expanding the Territorial Ambit of Offences 2.3 Expanding Territorial Jurisdiction Through Aut Dedere Aut Judicare Obligations 3 Expanding the (Extra)territoriality of Enforcement Jurisdiction 3.1 Article 18 3.2 Article 32 3.3 The Future of `Direct Access ́ 4 Uneasy Bedfellows 4.1 (Not) Addressing Jurisdictional Concurrency in Suppression Conventions 4.2 Problematising Jurisdictional Concurrency Over Offences 4.3 Re-orientating Suppression Instruments 5 Conclusion References Adjudicative Jurisdiction for Crimes at Sea: An International Law Perspective 1 Introduction 2 The Applicable International Legal Framework 3 The Italian Approach 3.1 Italian Adjudicative Jurisdiction and Article 15(2) and (4) UNTOC 3.2 Italian Adjudicative Jurisdiction, the UNTOC Smuggling Protocol and UNCLOS 4 Concluding Remarks References Coercive Powers and Jurisdiction on the High Seas to Combat Human Smuggling 1 The Prevalence of Praxis in the Context of the Emergency 2 The Different Aspects of ``Jurisdiction ́ ́ and the Problem of Their Misalignment 3 Executive-Coercive Powers in International Waters: A Basic Framework 4 Uncertainty About Jurisdictional Powers and the Expedient of Territoriality 5 Critical Remarks and Prospects References Part II: Migrant Smuggling Anti-smuggling Penal Policies: A Cross-National Exploration 1 Introduction 2 Anti-smuggling Penal Policies: Criminalisation Models 3 Anti-smuggling Penal Policies: Normative and Factual Pitfalls 4 Anti-smuggling Penal Policies: The Effectiveness Conundrum 5 Conclusions: Towards a Comparative Research Agenda on Anti-smuggling Penal Policies References The Distinction between Facilitation of Irregular Immigration and Organised Smuggling of Migrants and Its Relevance for the It... 1 Introduction 2 A First Reconstruction of the Court ́s Reasoning 3 Is the Distinction Between Mere Facilitation and Organised Smuggling Crystallised in Art. 12 Tuimm? 4 The Distinction Between Mere Facilitation and Organised Smuggling Is Irrelevant to the Constitutionality Question at Stake 5 Concluding Remarks References Challenging the Hostile Environment for Search and Rescue at Sea: Reflections from the Sea Watch Litigation 1 Introduction 2 The Applicability of EU Law: The Transport Legal Basis 3 The Law of the Sea and the Relationship Between International and EU Law 4 Applying General Principles of EU Law: Sincere Cooperation 5 The Rule of Law 6 Conclusion References Part III: Human Trafficking and Labour Market The Problems of Trafficking in Human Beings in Spain. Criminal Regulations and Jurisprudential Treatment 1 Introduction 2 Political-Criminal Matters 3 Trafficking of Human Beings: Spanish Legislation and Jurisprudence 4 Concurrency of Offences 5 Procedural Problems 6 Conclusions References Organised Crime, Illicit Manpower Brokerage and Recent Italian Legislation 1 Italian Legislative Measures Against the Excessive Exploitation of Workers 2 The Need for Manpower Brokerage and the Organisational Aspects 3 Criminal Organisations and Objectively Excessive Exploitation Without Intimidation 4 Criminal Organisations and the Exploitation of Workers Backed by Intimidation References International and Domestic Perspectives to Combat Gangmaster Systems 1 The International Perspective in Combating Labour Exploitation 2 The Italian Perspective: The Phenomenon of `Caporalato ́ 2.1 The Demolition of Public Covenants in Labour Intermediation and the First Attempts to Combat the Phenomenon of `Caporalato ́ 2.2 New Repressive Paradigms in the Relationship Between Law and the Labour Market 2.2.1 Genesis and Nature of `Taking Advantage of the State of Need ́ 2.2.2 Indexes of Exploitation Between Typicality and Protection of Workers ́ Rights 2.3 And Paradigm Shift: From Repression to Prevention. A Form of Economic Crime 3 In Search of Hidden `Caporali ́: The German Perspective and Labour Market Protection 3.1 Some Comparative Insights 4 Final Remarks. Corporate Crime and Labour Flexibility References Part IV: Traffickings of Goods and Human Organs Soft Drugs and Organized Crime: A Problematic Relationship 1 Personal Drug Use, Trafficking in Soft Drugs and Cannabis and Organized Crime 2 The Supranational Regulatory Context 3 US Legislation 4 The Legislative Solutions Adopted in Germany, Portugal, Spain and Greece 5 Italian Law 6 Points of Contact and Divergences Between the European Systems Examined 7 An Overview of the Legislations Adopted at National Level to Combat Organized Crime Dedicated to Drug Trafficking 8 The Merits of the Italian Solution 9 Phenomenology of the Trafficking of Soft Drugs and Cannabis in the Mediterranean 10 Balance Sheets and Perspectives de iure condendo: The Weight of Lightness References Trafficking in Cultural Property. An Evolving International Legal Framework 1 Introduction 2 Trafficking in Cultural Property: A Criminological Overview 2.1 Transnational Dimension, Dark Figure, and the Grey Market 2.2 Intersections with White-Collar Crime, Organized Crime, and Terrorism 2.3 Globalization, E-Commerce and New Online Criminal Networks 2.4 The Slow Evolution of International and EU Law towards Actual Criminalization of Offences Related to Trafficking 2.4.1 The Failure of the 1954 Hague Convention and the Evolution of International Humanitarian Law 2.4.2 The Inadequacy of International Regulation of the Transnational Circulation of Cultural Objects and the Renewed Efforts ... 2.5 The Evolution of European Union Law 3 The Long Road towards a Suppression Treaty 3.1 The First Attempt by the Council of Europe: The 1985 Delphi Convention 3.2 The 1990 Model Treaty 3.3 The 2017 Nicosia Convention 4 Conclusion. Ongoing Progresses and Open Questions References The Criminal Policy on Trafficking in Cultural Goods 1 Introduction 2 A Needed Clarification: What Is Organised Crime (from the Law Point of View)? 3 The Features of the Cultural Goods Market 4 The Interest of the International Community in the Phenomenon and the Possible Interventions 5 The Italian Case 6 Concluding Remarks: How to Tackle the Trafficking Phenomenon? References Trafficking in Human Organs: A Portuguese Perspective 1 The Problem 2 International Legal Framework 3 National Legal Framework Until 2019 4 The Criminal Offence of Trafficking in Human Organs 5 Conclusion References