MONEY LAUNDERING: AN ASSESSMENT OF SOFT LAW AS A TECHNIQUE FOR REPRESSIVE AND PREVENTIVE ANTI-MONEY LAUNDERING CONTROL

ABSTRACT Large-scale money laundering (ML) schemes contain cross-border elements, which require cross-border international responses to the problem. A number of initiatives have been established for dealing with the problem at the international level. This includes a growing array of cooperative techniques designed to create a platform for harmonisation and approximation of domestic and international anti-money laundering law. These techniques, aimed at creating an environment for law enforcement and international cooperation, are intended to address the problem of ML, irrespective of the particular predicate criminal activity to which they may be applied. However, given the nature of the problem of ML and the intended legal response, the traditional approach to international law making is limited and less effective as a method of creating the needed platform and atmosphere for effective law enforcement and international cooperation. The consequence of the combination of a non-traditional subject matter with the limitations of traditional international law instruments has meant that lawmakers, seeking international solutions to the problems of ML, have had to innovate. This innovation has found expression in particular with soft law. A range of opinion exists on the theoretical and practical desirability of soft law. Some authors have long rejected formal distinctions between international law and policy; others acknowledged that the contemporary international law-making process is complex and deeply layered that there is a ‘brave new world of international law’ where “transnational actors, sources of law, allocation of decision function and modes of regulation have all mutated into fascinating hybrid forms. International Law now comprises a complex blend of customary, positive, declarative and soft law”. Adopting a mixed methods approach and drawing on the work of existing literature, the thesis seeks to distinguish itself from others by assessing the role of soft law as a technique to repress and prevent ML. The thesis addresses two fundamental issues in the context of existing international and domestic response to the problem of ML that remain largely uncovered by the other literature: the nature of the treaty obligations to criminalise ML and the role of soft law as a technique to repress and prevent ML. The thesis concludes that international legal harmonisation and approximation of domestic anti-money laundering law through soft law remains useful to addressing the problem of ML