Global Criminal Law: Postnational Criminal Justice In The Twenty-First Century

116 Pages·2022·1.354 MB·English

by  Adán Nieto Martín

Global Criminal Law
Postnational
Criminal Justice in
the Twenty-First Century
Adán Nieto Martín
Global Criminal Law
Adán Nieto Martín
Global Criminal Law
Postnational Criminal Justice in the 
Twenty-First Century
Adán Nieto Martín
School of Law and Social Sciences
University of Castilla-La Mancha
Ciudad Real, Spain
ISBN 978-3-030-84830-9 ISBN 978-3-030-84831-6 (eBook)
https://doi.org/10.1007/978-3-030-84831-6
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C
ontents
1 On the Way to Stateless Criminal Law 1
1 I ntroduction 1
2 T he Forces of Change 3
2.1 Relational Sovereignty 3
2.2 Security 7
Bibliography 12
2 The Ius Puniendi of International Organizations 17
1 T he Criminal Policy of Transgovernmental Networks 17
2 I nternational Organizations 22
2.1 The Increase of Regulatory Capacity 24
United Nations and the Security Council 25
Effectiveness Strategy 26
2.2 Supranational Sanctions 33
EU administrative Sanctions 33
UN Blacklisting 35
World Bank Sanctions Systems 37
Bibliography 45
3 P rivate Ius Puniendi 49
1 N on-State Actors 49
1.1 Multinational Corporations 50
1.2 Collective Actions 54
1.3 NGOs 58
v
vi CoNTeNTS
1.4 Standardization Bodies and Other Non-State
Regulators 59
2 G lobal Ius Puniendi of Sports Federations and Associations 62
Bibliography 65
4 Territories, Sovereigns, and Ius Puniendi 69
1 T he Spatial Application of Criminal Law and Judicial
Cooperation 69
1.1 The Iron Triangle 69
2 P ost-Westphalian Paradigm of Judicial Cooperation 72
3 T he Criminal Law of Territories with No Sovereign 76
Bibliography 82
5 Legitimacy and Safeguards 85
1 C riminal Justice Outside of States? 85
2 L egitimacy of Post-State Ius Puniendi 87
2.1 Strengthening National Legislatures 88
2.2 Deliberative Democracy 89
2.3 The Principle of Subsidiarity 91
3 G lobal Criminal Law: Which Fundamental Rights? 92
4 T he New Rules of Global Cooperation 95
4.1 The Importance of Data Protection Law 95
4.2 Conflicts of Jurisdiction and International
Ne Bis in Idem 99
Bibliography 106
Index 109
CHAPTER 1
On the Way to Stateless Criminal Law
1 IntroductIon
Global law is more an all-encompassing concept than a legal reality. There
are very diverse issues under the umbrella of global law. The link that ties
them together is the state’s diminished role as a regulator.1 A multilevel
governance2 system has filled the gap left by national or domestic law.
More specifically, there is a form of post-national regulation involving the
interaction among states, international organizations or institutions, gov-
ernment networks, and other private stakeholders, such as multinational
corporations (also known as multinational enterprises or companies), stan-
dardization bodies, and NGOs. The scenario for this new form of regula-
tion is globalization, where several problems have arisen that are hard to
solve through individual state action. Criminal policy experts often include
all of these issues under the notion of transnational or cross-border crime.3
By making it into the wording of Article 83 of the Treaty on the
Functioning of the European Union (TFEU), this concept has traveled
from international criminal justice policy and criminology to written posi-
tive (statutory) law.
Public law scholars have been discussing global law for a long time.
However, there has been no such debate within criminal justice (a few
exceptions are Sieber 2010; Meyer 2012). The last frontier for criminal
law scholars is treaty law, which is still founded on state consent and thus
on state sovereignty. States “own” the conventions, and international
© The Author(s), under exclusive license to Springer Nature 1
Switzerland AG 2022
A. Nieto Martín, Global Criminal Law,
https://doi.org/10.1007/978-3-030-84831-6_1
2 A. NIETO MARTÍN
organizations are mere instruments to serve their projects and interests.
Regarding the International Criminal Court (ICC) this is mostly4 true
(Ambos 2013), since it depends on the consent of States Parties to the
Rome Statute. The main purpose of this work is to describe how and to
what extent criminal policy and criminal justice no longer fall within the
exclusive scope of states and national law. This work intends to map this
new “global punitive law,” which would cover all the stages of the state’s
right to punish or ius puniendi: defining criminal offences, investigating
criminal behavior, seizures or confiscations, and other measures or proce-
dures or even the actual sentencing. Most shockingly, this mapping reveals
the appearance of global or supranational sanctions systems often in the
hands of private entities. Also, the “maps” include many more “regions”
than expected.
A stateless ius puniendi or a form of ius puniendi where states act as
mere additional regulators on an equal footing with others can be surpris-
ing either way. For centuries, the right to punish has been exclusively held
by states. Therefore, many consider that the very notion of “stateless ius
puniendi” is an oxymoron.5 Also, noticing that this has become true can,
and should, be worrying. The main criticism to the global law debate
relates to the word “law.” Using “law” to designate rules stemming from
private actors or supranational entities with scarcely transparent and non-
participatory rulemaking procedures (such as the G20, G7, the
International Monetary Fund, or the World Bank) simply legitimizes what
is otherwise illegitimate (Darnaculleta 2016, p. 111 et seq). We the experts
on these topics would therefore turn into accessories to the neoliberal
driving forces of globalization.
This criticism is largely correct. Networked regulation, with states in
the background, raises major concerns in terms of legitimacy, transpar-
ency, guarantees, and accountability. Accordingly, the main purpose of
global law should be to assess the legitimacy of these new regulatory
approaches and to enhance individual rights by reshaping, importing, and
applying the rule of law guarantees. This is what some label as global
administrative law or, more graphically, global constitutionalism (Krisch
2010). Secondly, this work also aims at providing the safeguards and guar-
antees of global criminal law. By doing so, we contribute to the global
constitutionalism debate from the perspective of criminal law. One thing
is clear: there is no turning back.6 The criminal law issues resulting from
globalization can only be solved through a ius puniendi that is not state-
oriented, with different regulatory and enforcement mechanisms based on
1 ON THE WAY TO STATELESS CRIMINAL LAW 3
the cooperation and joint action of several public and private actors: a
polycentric or networked criminal justice system (regulation by networks).
Note that this new global ius puniendi coexists and sometimes interacts
with more conventional or treaty-based dimensions of international crimi-
nal law or even quasi-federal criminal frameworks, such as that in place
among European Union (EU) member states. The situation of transna-
tional and supranational criminal law can be pictured as a set of three legal
frameworks, each of them with distinct features and elements and yet with
large overlaps: (i) classic international criminal law; (ii) European criminal
law, and (iii) global criminal law. It makes no sense to argue about whether
a given framework falls within the scope of another. Alongside these legal
frameworks, criminal justice systems of the strongest countries, namely
that of the United States, can also play a key role. US criminal law has a
clear extraterritorial vocation, and it exerts a strong influence on other
criminal law frameworks, hence the so-called Americanization process.7
This work focuses on global criminal law. There will not be a detailed
analysis of the other two frameworks or the most influential national legal
orders; occasionally, we will discuss them for comparative purposes only.
2 the Forces oF change
The emergence of post-state criminal law, whose patterns differ from those
of classic international law, results from two main transformative elements
that can be found in the various dimensions discussed below. First, there
is relational sovereignty, a new concept of sovereignty downplaying the
importance of the state-territory binomial and bringing new actors on the
international relations stage. Second, there is a renewed concept of secu-
rity; it legitimizes the appearance of new actors on stage while providing
grounds to justify further control and prohibitions.
2.1 Relational Sovereignty
The first driver of transformation is the metamorphosis of the ever elusive
concept of sovereignty. The prevailing conception of sovereignty stems
from the Peace of Westphalia. Westphalian sovereignty departs from feu-
dalism and from the first state-building approaches. From then onward,
power and authority became tied to a “spatial extension”: the territory
(Badie 1995, Ruggie 1993). Within their borders, sovereign rulers exer-
cise their power without any external meddling or interference from other
4 A. NIETO MARTÍN
rulers or from papal or imperial power (potestas legibus solutus). Westphalian
sovereignty is the right to be left alone, to exclude, to be free from any
external meddling or interference within each sovereign ruler’s spatial
extension (Slaughter 2004).
According to this classic conception of sovereignty, when a sovereign
state engages in relations with other states it does so on an equal footing
with any others (sovereign equality), being an autonomous agent in the
international community (Kelsen 1944). International treaties and con-
ventions, the paramount source of international law, comply with this
paradigm. International conventions become legitimate, come into force,
and thus are incorporated into domestic law, upon ratification by national
parliaments, who are entitled to make reservations or to withdraw from
treaties (treaty denunciation) if they see fit. This model of international
law barely interferes with state sovereignty. Under this paradigm, interna-
tional law theory shares some aspects with contract law (pacta sunt ser-
vanda, the principle of good faith…), and international law standards are
based on a principle that resembles free will: “The rules of law binding
upon States therefore emanate from their own free will” (Lotus, PCIJ, Ser.
A, no. 10, 18; Caeiro 2010).
International organizations also rely on the principle of sovereign
equality, and their activity is based on fully respecting states and their ter-
ritory. An expression of this respectful relationship is that international
organizations address their decisions to member states, yet these decisions
do not directly affect individuals. There is no doubt that states “own”
international organizations. Traditional international institutions do not
get involved in state-citizen relations; these are handled exclusively by sov-
ereign authorities.
This approach to international relations implies that states interact with
each other and with international organizations through a very specific
branch: diplomatic missions. The remaining state bodies and officials are
not empowered to engage in interstate relations or, let alone, to enter into
agreements or strategic alliances. In the international arena, countries act
as unitary states, meaning that their bodies, authorities, or internal depart-
ments have no international presence. As discussed in detail below, this
remains the prevailing conception regarding international cooperation.
When asked for assistance, judges, public prosecutors, and law enforce-
ment authorities help each other, but they do not cooperate directly. In its
most traditional version, judicial cooperation or assistance must be imple-
mented by diplomatic officials. The same applies to legislatures: they are