Global Criminal Law

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
© The Author(s), under exclusive licence to Springer Nature Switzerland AG 2022

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Contents
1 On the Way to Stateless Criminal Law 1

1 Introduction 1
2 The Forces of Change 3
2.1 Relational Sovereignty 3
2.2 Security 7
Bibliography 12
2 The Ius Puniendi of International Organizations 17

1 The Criminal Policy of Transgovernmental Networks 17
2 International 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 Private Ius Puniendi 49

1 Non-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 Global Ius Puniendi of Sports Federations and Associations 62
Bibliography 65
4 Territories, Sovereigns, and Ius Puniendi 69

1 The Spatial Application of Criminal Law and Judicial
Cooperation 69
1.1 The Iron Triangle 69
2 Post-Westphalian Paradigm of Judicial Cooperation 72
3 The Criminal Law of Territories with No Sovereign 76
Bibliography 82
5 Legitimacy and Safeguards 85

1 Criminal Justice Outside of States? 85
2 Legitimacy 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 Global Criminal Law: Which Fundamental Rights? 92
4 The 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
Bibliography106
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
not involved in any treaty negotiations. National legislatures simply ratify

conventions or, at best, they give advice to diplomatic authorities, but they
do not negotiate.
After World War II, following a steady process beginning with the
Treaty of Versailles and the creation of the League of Nations, there was a
paradigm shift in international law. A new version of classic international
law appears, the so-called progressive Grotian tradition, which is now the
prevailing paradigm. State sovereignty, that is, sovereignty of authorities
over their citizens within their borders, will no longer be absolute. Post-
World War II human rights conventions entail that human rights limit
sovereign authorities’ scope of action within the territory (Ferrajoli 1998).
Now, public international law is mostly concerned about individuals. The
Nuremberg trials embody this new paradigm leading to countries’ loss of
power. States, and thus individuals acting on their behalf, are no longer
invisible for international law, and they can now be held liable subject to
international law provisions.8 International law currently assumes the abil-
ity to intervene and to set aside the right to be left alone where states (i)
violate human rights on their territory or (ii) are unable either to prevent
human rights abuses or to ensure compliance with human rights inside
their borders (Slaughter 2004 p. 284; Ferrajoli 1998 p. 177). Alongside
this first paradigm shift in international law, there is a second transforma-
tion accounting for the rise of global law. As shown below, states no longer
have a major role in rulemaking or regarding coercive enforcement. This
transformation led to a new concept of sovereignty. There has been a tran-
sition from Westphalian sovereignty to a post-Westphalian or relational
sovereignty (Chayes and Chayes 1995).
Some problems are no longer solved by the states’ ability to exercise
their authority freely and in isolation within their borders. Exercising the
ius puniendi based on their exclusive jurisdiction over their territory does
not guarantee that states will be able to effectively tackle transnational
crime, environmental protection issues, or financial market stability. In a
globalized world, citizens face problems that are cross-border in nature. In
order to solve these problems, states must be able (i) to enter into rela-
tions with other states, organizations, and companies as well as to (ii) cre-
ate areas of joint government. The greater a state’s ability to set up
networks with public or private actors, to cooperate with other states, or
to impose its views in international institutions, the greater the state’s
sovereignty or power. Within this new context, political scientists refer to
soft power as the means to achieve certain objectives. Soft power
6 A. NIETO MARTÍN
prioritizes dialogue over coercion, by exchanging ideas in international

networks, training foreign public officials, and giving advice (Nye 1990).
In contrast with traditional sovereignty, relational sovereignty entails
sharing sovereignty and power with other states, with international orga-
nizations, and even with private stakeholders. The most remarkable play-
ers are the so-called government networks, which focus on very specific
and highly specialized global matters such as banking supervision and
regulation, the environment, as well as antitrust and securities law. These
networks are the main rulemakers in global governance. As discussed
below, there is a myriad of these informal organizations. Nation-based
hierarchies and diplomatic missions do no longer meet. Depending on the
network, the meeting participants are, inter alia, senior officials from stock
market supervisory bodies, from antitrust authorities, banking supervi-
sors, judges, or law enforcement authorities. Traditionally, states used to
act en bloc, as a unit. However, under the new paradigm of international
law, states are extremely disaggregated, fragmented, and represented by
bodies and officials that freely and directly enter into relations with their
foreign counterparts (Slaughter 2004; De Bellis 2020).
Relational sovereignty has also given rise to cooperation jargon terms
like “public-private partnership” (Donahue and Zeckhauser 2006; regard-
ing corruption Klitgaard 2012). In these partnerships, public and private
actors engage in primarily horizontal relations and work together to tackle
certain issues such as corruption. NGOs and multinational corporations
are the leading actors in global governance. They participate both in rule-
making and in enforcement. Due to their flexible nature, the aforesaid
government networks encourage the presence of these players. Therefore,
NGOs and multinational corporations sometimes operate in these net-
works, but they also get involved in rulemaking procedures within the
most traditional international institutions for the sake of deliberative
democracy. On top of this, in rulemaking there is a trend toward self-
regulation in all states, encouraged as a form of global governance. This
trend has not yet been connected with a metamorphosis of the concept of
sovereignty. However, self-regulation is clearly a national strategy to seek
or require cooperation in rulemaking and enforcement. In other words,
self-regulation shows states’ will to call upon other actors and to enter into
relations therewith to devolve or delegate powers that used to be exclu-
sively held by state authorities (Bamberger 2006).
Ultimately, relational sovereignty has brought along a more sociologi-
cal and less formal explanation of the validity and effectiveness of
international law (Raustiala 2002; Slaughter 2014a, b). Compliance in

international law is based on the ability to establish support networks for
pieces of legislation ensuring the provision’s (i) technical legitimacy, along
with (ii) a strong support in terms of shared values or opinions, as well as
(iii) reputational and economic costs in case of infringement. Thus con-
strued, the success of legal provisions shows the importance of soft law,
guidelines, private standards, or self-regulation, which is intertwined with
the previous aspects (see Chap. 2, section “Effectiveness Strategy”).
2.2 Security
Security is the second driver of global criminal justice. Although the term
has a broad meaning, we will focus on the binomial internal-external secu-
rity. For centuries, any security threats faced by a country came from
abroad, mostly from foreign countries. This context gave rise to a new
group of public services and officials: intelligence agencies. They were
tasked with obtaining information and subsequently analyzing it in intel-
ligence reports, in order to guide political decisions aimed at protecting
national or homeland security (Gonzalez Coussac 2019; Gaonzález
Coussac and Fernández Flores 2017). Nowadays, the concept of external
security has changed completely.9 From the mid-1960s, but particularly
following the fall of the Berlin Wall and the end of the Cold War, terror-
ism, organized crime, or cybercrime have become global security threats.
Currently, the notion of security covers environmental and stock market
threats (financial security).10 This new conception has impacted on inter-
national organizations’ roadmaps, particularly on the United Nations
(UN) agenda. Note that the UN’s central mission is “the maintenance of
international peace and security.” This redefinition of security has pro-
vided grounds for further empowering certain bodies, such as the UN
Security Council, and it has also enabled many international institutions
that used to be unrelated to criminal law to include crimes in their agendas
on the basis that they threaten market performance (Felsen and Kalaitzidis
2005; Naylor 1995; Mitsilegas et al. 2003).
Global criminal law is, at least partially, the law of global security.11The
notion of security and its interpretation is also connected with transna-
tional crime (Boister 2003, Fouchard 2013). For a while, scholars have
been making efforts to provide the concept of transnational crime with
normative content. The term “transnational crime” was coined by the
United Nations in the mid-1970s (Bassiouni 2006; Bassiouni and Vetere
8 A. NIETO MARTÍN
1998) with the aim of launching a new legislative agenda. After, this con-
cept has been extensively used by criminologists and later, at a third stage
of the concept’s development, there was an attempt to turn it into a nor-
mative or legislative term, largely because the equivalent notion “cross-
border” crime was inserted in Article 83 TFEU (Mitsilegas 2016 p. 58).
Additionally, most of these efforts focus on giving substance to the notion
of “transnational” or “cross-border” crime vis-à-vis the category of inter-
national crimes, which encompasses the “core crimes” set out in the Rome
Statute along with other crimes against humanity like torture. Actually,
these are all terms of the same discourse or legal narrative. However,
although this is a semantic debate about terminology, and thus irrelevant,
the notion of security connected with the idea of global law seems more
comprehensive. Transnational crime has a more classic meaning. This con-
cept is tied to several international conventions and it does not sufficiently
highlight the rise of a new global governance of crime, which is the focus
of this study. Furthermore, as shown below, the notion of security did not
only give rise to a criminal policy agenda, but it has also provided a new
methodology to fight crime revolving around punitive or repressive mech-
anisms along with (and here comes the innovation) preventive instruments.
Aside from this first legitimizing function, the notion of security has a
somewhat concealed purpose that often goes unnoticed. This other pur-
pose is methodological in nature, and it entails transferring intelligence
service practices and lines of action to criminal justice policy for the pre-
vention and investigation of crimes. Global criminal law has advanced a
strategy to control crime based on the classic instruments of intelligence
services: collection and analysis of information (Bachmaier 2012; Vervaele
2012). Indeed, a preventive or deterrence-based strategy shared in many
global law sectors is to require public or private actors and bodies to col-
lect and store information. These obligations often come along with the
requirement to share, disclose, or make available this information. The
ultimate purpose of these requirements is to analyze the information using
profiling and risk assessment methods. The recent development of artifi-
cial intelligence techniques, such as big data or data mining, are also help-
ful (Maroto Calatayud and Nieto Martin 2010; Romeo and Casabona
2018; Miró 2020).
A risk assessment-oriented concept of security, where risk assessment
revolves around data analysis, has brought back notions like “dangerous-
ness” or “hazard” in criminal law, although with a different disguise.
Obviously, this new concept of security has also brought along new
penalties. They have been renamed with new modern names but their
purpose is very similar to that of the old criminal security or safety mea-
sures. The “smart” sanctions implemented by the United Nations against
terrorism (see Chap. 2, Sect. 2.2), discussed in detail later, are the para-
mount example of this new security law penalty system. Additionally, this
model (information + risk assessment + control measures) is an inspiration
for money laundering and terrorism financing regulations, providing for
information storage and analysis, as well as for the implementation of con-
trol measures limiting the rights of suspects in criminal cases. A parallel
approach to the implementation of these security measures would be the
provision of new endangerment crimes, which are applied to terrorism
offences, and they criminalize dangerous or hazardous conducts—indoc-
trination and training (Article 575 of the Spanish Criminal Code, Código
Penal or SCC) or financing (Article 576 SCC). The almost only way to
discover these conducts is by collecting and analyzing information.
Starting from an allocation of powers based on this new approach to secu-
rity, as discussed later on, these crimes have been inserted in criminal codes
partly because of the UN Security Council resolutions. This set of alterna-
tive criminal law measures also includes the confiscation regime, providing
for mechanisms such as “non-conviction based confiscation” (forfeiture)
or “extended confiscation.” Also regarding the advancement of these
instruments, the UN’s role has been critical.
Notes
1. See an overall discussion of global law in Darnaculleta i Gardella
M. M. (2016, 2019). From the perspective of international law, see Ortega
Carcelén M. (2014, 2019); from the perspective of theory of law and legal
history, see Grossi P. (2006) and; Teubner G. (1997); from a constitu-
tional law standpoint, see Krisch (2010).
2. The meaning of governance as the opposite of government means exactly
that state or domestic law’s diminished role or loss of importance as the
only source of legal provisions governing social interaction: “Governance
is the sum of the many ways individuals and institutions, public and private,
manage their common affairs. It is a continuing process through which
conflicting or diverse interests may be accommodated and co-operative
action may be taken. It includes formal institutions and regimes empow-
ered to enforce compliance, as well as informal arrangements that people
and institutions either have agreed to or perceive to be in their interest,”
see Commission on Global Governance, Our Global Neighbourhood: The
10 A. NIETO MARTÍN
Report of the Commission on Global Governance, Oxford, 1995. (http://

www.gdrc.org/u-gov/global-neighbourhood/, last visited 25.6.2021).
3. There are many works showing the various globalized crime scenarios, the
most official version being that of the United Nations Office on Drugs and
Crime (UNODC) (2010); a descriptive analysis in Reichel P. (ed.) (2005),
specially Felsen and Kalaitzidis (2005); Karstedt S. and Nelken D. (2013);
in the field of economic offences, see Zagaris B. (2015); a more crimino-
logical approach can be found in Smith C. et al. (2011). For a critical
perspective See Mitsilegas V. et al. ed. (2015) and specially Andreas P.’s
contribution in this book.
4. We purposefully say “mostly” because, as discussed below, a leading actor
in global law such as the UN Security Council can play a significant role in
the ICC’s regulation. However, it must be admitted that this is an ius
puniendi exercised by the international community and not by individual
states, Ambos K. (2013).
5. See a more detailed analysis in Chap. 5, Sect. 1). Aside from stateless supra-
national ius puniendi, the debate about whether there is room for a non-
state criminal law framework can also be held within a legal system. For
instance, over the last few years, there has been extensive discussion about
the privatization of ius puniendi. See a comprehensive review in García de
la Galana, B. (2019). The so-called restorative justice and penal abolition-
ism from the 1970s are also de-statalizing or state-free trends wishing to
put the conflict back in the hands of society. Indigenous justice is also an
example of stateless criminal justice. See a historical analysis of this matter
(with additional examples) in Caeiro P (2010).
6. Some call it the globalization paradox: we need more centralized power
although we fear the risks for democracy and freedom of centralizing
decision-making power and coercive authority. The existence of various
actors, a polycentric governance, ensures that a system of checks and bal-
ances is in place to some extent. On this paradox, see Slaughter (2014a, b,
p. 8 et seq).
7. Within the context of economic criminal law, I dealt with this issue in
Nieto Martín (2007). On this topic, see the remarkable works by Raustiala
(2002) and Slaughter A. M. (2014a, b). These works provide an overview
of the Securities and Exchange Commission’s strategy regarding stock
market law, Environmental Protection Agency’s approach in environmen-
tal matters, or the Department of Justice’s stance on antitrust law to
expand US law worldwide. Another interesting work is Nye (1990). This
work elaborates on the concept of soft power as one of the main instru-
ments implemented by the United States to expand its regulatory models.
Soft power means, inter alia (i) taking advantage of training officials from
other countries; (ii) providing technical assistance; (iii) establishing coordi-
nating bodies, and (iv) exchanging best practices.
8. In this struggle, it is worth highlighting the works of the great interna-

tional law expert Lauterpacht H. (1946, p. 20 et seq). Unsurprisingly,
Lauterpacht brought the works of Grotius to the foreground in this new
era of international law. Grotius’ great treatise, De jure belli ac pacis, was
written two decades before the Peace of Westphalia, and it questions state
sovereignty over their territory. Relying on the concept totiushumani
generis societas, Grotius puts forward a pre-Westphalian idea, according to
which part of international law should not focus on states but on individu-
als. The law of nations underlying this approach is common to humanity as
a whole, beyond states, which entails that state sovereignty must be subject
to the rule of law. The construct of the crime of aggression and thus the
possibility of considering that a war can be unlawful departs precisely from
this “international rule of law” claim. See also, Domingo (2010), who
provided ius gentium as the foundations of global law.
See Sands (2017) an extraordinary novel-like history of the life and
works of Hersch Lauterpacht and his influence on Nuremberg. However,
the author of this book questions that this school of international law has
ties with Grotius’ works. See Parry (2014). She claims that Lauterpacht
invoked Grotius to legitimize this new school of international law that was
going to play a role in the Nuremberg trials and to be enshrined in the
Charter of Fundamental Rights.
9. On the evolution of the concept of security, see Laboire(2011, p. 3 et
seq).Redefining security as a global problem provides an additional reason
to strengthen interstate cooperation using innovative approaches as the
ones pointed out in the previous section. Indeed, there are frequently used
terms such as “cooperative security” or “common security” to refer to this
new form of cooperation. See Abad Quintanal G. (2015, p. 41 et seq).As
also noted by Abad Quintanal, from this perspective we also refer to food
safety, energy security, or even human security or public safety, which ulti-
mately relates to the protection of individuals against widely spread crimi-
nality, such as high homicide and crime rates in certain countries. Below,
we examine how the UN intervenes in failed states to ensure public safety
in case of purely domestic threats, such as increasing crime rates.
10. Cf. Felsen D and Kalaitzides (2005 p. 13). These scholars claim that the
concept of security began to be redefined after the Cold War in the United
States. Thereafter, law enforcement authorities started to be concerned
about international crime. This shift is aptly exemplified by a document
stemming from a conference held in Washington in 1994. There were
police officers, intelligent service agents, and so on. See Raine and
Cilluffo (1994).
11. See, above all, the analysis by Sieber (2018). This study suggests the fol-
lowing as alternative control mechanisms of security law: supranational
12 A. NIETO MARTÍN
administrative fines, the blacklisting system, anti-money laundering

regimes, compliance programs, or confiscation proceedings. Self-evidently,
Sieber’s mapping, designated as “security law” largely matches what we call
“global law.” The first attempt to grasp the importance of security in crimi-
nal law was made by Pérez Cepeda (2007). However, she focused on
“criminal law of the enemy” or Feindstrafrecht as well as on the “militariza-
tion of criminal justice.” She suggested to take globalization claims for
enhanced security to the International Criminal Court or to subject them
to classic international law. This analysis focuses on the extension of crimi-
nal law and its severity. However, we emphasize the emergence of a more
prevention-oriented global security law that has given rise to control mea-
sures than run parallel to criminal law.
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University Press, 2nd ed., 2015
CHAPTER 2
The Ius Puniendi of International

Organizations
1 The Criminal Policy

of Transgovernmental Networks
A typical product of relational sovereignty are the so-called transgovern-
mental networks or inter-governmental networks which amount to an
essential element of global governance (De Bellis 2020; Raustiala 2002;
Slaughter 2014). There are some paramount examples of these networks:
the International Organization of Securities Commissions (IOSCO),
including stock market authorities; the International Competition
Network (ICN), bringing together antitrust authorities worldwide; the
Basel Committee and International Association of Insurance Supervisors;
and the Basel Committee on Banking Supervision (BCBS), whose mem-
bers are central banks and banking supervisors. Actually, there are trans-
governmental networks in almost every industry, so it is quite difficult to
list them all. Transgovernmental networks supplement the activity of
international organizations and states. Therefore, they do not represent a
different model but a complement or an accessory. In fact, states and
international organizations create transgovernmental networks. All of
these networks focus on training, exchange of information, and best
practices, but they also play a central role in rulemaking. They are con-
stantly issuing standards, guidelines, or recommendations that subse-
quently have a major influence on lawmakers. Even more remarkably,

Switzerland AG 2022
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18 A. NIETO MARTÍN
transgovernmental networks are involved in the implementation of many

of these rules and regulations.
The defining feature of transgovernmental networks is their composi-
tion. They are made up of government officials from various bodies and
agencies, including the police, judges, and members of national legisla-
tures. As noted above, under the Westphalian paradigm of sovereignty,
only diplomatic authorities were entitled to negotiate and represent the
state internationally. It was unthinkable that any other government offi-
cials or public servants could officially interact, and let alone that they
entered into agreements, issued joint guidelines, or reached common
positions that could be binding on their respective states. Transgovernmental
networks should be construed as a parallel diplomacy, comprising well-
trained officials with expertise that participate therein autonomously; they
do not follow instructions from governments or legislatures (Slaughter
2014). They are usually appointed by hierarchical superiors. Nevertheless,
these networks are open. In addition to state officials, transgovernmental
networks often include international organizations, companies, private
entities, and NGOs. Self-evidently, they are a flexible and open meeting
point for all the actors involved in global regulation.
Transgovernmental networks have a tremendous influence on national
lawmaking, and they have harmonizing effects resembling those of inter-
national conventions. This influence is due to several factors. First, the
guidelines issued by these networks have a high technical legitimacy
(Muñoz de Morales 2011) because they are bodies of high-ranking offi-
cials or public servants, who are knowledgeable and have extensive exper-
tise on the relevant matters; these high-level officials are often assisted by
other experts or companies. Second, transgovernmental network mem-
bers are close to the executive branch of government and they can have
considerable influence on bills or draft legislation.
However, the key to their success is the strategy implemented by inter-
national regulation. This strategy revolves around teamwork: a given
international network’s guidelines underpin a treaty or vice versa, or the
soft law provisions enacted by international institutions supplement the
guidelines issued by transgovernmental networks (Sieber 2009, p. 514).
The effectiveness of transnational network recommendations largely relies
on the network’s ability to avoid reputational costs. See, for instance, the
Financial Action Task Force’s (FATF) blacklist of countries that are “non-
cooperative” in the global fight against money laundering and offshore
financial centers (tax havens). Reputation and relational sovereignty are
2 THE IUS PUNIENDI OF INTERNATIONAL ORGANIZATIONS 19
closely intertwined. A state’s bad reputation for not complying with these
networks’ guidelines will lessen its ability to build partnerships and alli-
ances, thereby reducing its power, influence, and sovereignty.
As shown above, the success of transgovernmental networks revolves
around the notions of relational sovereignty and soft power. The more
support from various actors, the more effective the provisions. Also, a
state’s presence in these international fora and its capacity to round up
support will largely depend on the state’s international reputation. Being
blacklisted, getting a bad evaluation, or not fulfilling the expectations gen-
erated in other parties by being part of these networks entails reputation
costs for countries that undermine their sovereignty. Since sovereignty is
measured by how states interact with other states and stakeholders, having
a good or bad reputation is a decisive factor (Slaughter 2014, p. 196, 203
et seq). In addition to their instruments, transgovernmental networks also
rely on soft power to disseminate their regulatory proposals and legislative
initiatives: they build mutual trust by (i) exchanging information and
experiences and (ii) offering technical assistance, professional socializa-
tion, and training to members from “less developed” nations (Slaughter
2014, p. 290 et seq.; Zagaris 2015, p. 10 et seq).
Even within the scope of criminal law alone, it is complicated to count
how many networks there are. For the sake of simplicity, note that there is
a trend toward regionalization and specialization. Some global networks
like G20 have certain working groups focusing on corruption. These
groups overlap with the networks established by long-standing organiza-
tions. For instance, they overlap with The Stolen Asset Recovery Initiative
(StAR) (Prieto del Pino 2019, p. 507 et seq), resulting from a partnership
between the World Bank and the United Nations, which deals with the
recovery of corrupt assets.
The greatest concentration of criminal justice networks, or at least the
most visible ones, tend to focus on money laundering, financing of terror-
ism, and confiscations. The most famous one is the Financial Action Task
Force (FATF), an inter-governmental body dedicated to advancing legis-
lative initiatives on this matter.1 The 40+9 Recommendations have become
the basis for pieces of legislation on money laundering and terrorism
financing worldwide. The FATF interacts with international organiza-
tions, mostly the World Bank and the International Monetary Fund
(IMF), which can participate in its working groups and task forces, as well
as with the EU, the UN, the Organization for Economic Cooperation and
Development (OECD), and G20. FATF 40+9 Recommendations have
20 A. NIETO MARTÍN
been so successful partly because UN Security Council Resolution 1617

strongly urged states to implement them and the Action Plan on terrorism
expressly invoked them. The FATF also interacts with other transgovern-
mental networks such as Wolfsberg Group (an association of the leading
central banks) or the Basel Committee on Banking Supervision (BCBS).
These networks issue specific standards for the banking sector supple-
menting those of FATF.2 Effectiveness is based on this “chain of referrals”
involving standards and mutual support.
The networks fighting money laundering and working on the confisca-
tion of criminal assets are not only rulemakers. Networks with a focus on
standardization often give rise to internal sub-networks made up of police
officers and other government agency officials. The purpose of these sub-
networks is to improve the enforcement of a given regulation. The
exchange of information that takes place amounts to a true form of police-
judicial cooperation,3 that has sometimes resulted in another independent
network. This is the case, for instance, of Egmont Group, established in
1995 by the FATF. This regulatory enforcement network is a body of
state-created intelligence units that share and exchange financial intelli-
gence on transactions suspicious of money laundering. There are similar
networks: the EU Asset Recovery Offices or Eurojust’s Financial and
Economic Crime Team (FEC) (Prieto del Pino 2019).
As if they were involved in a cell division process, transgovernmental
networks undergo mitosis. As a result of their mitotic phase, they steadily
break down into smaller and increasingly more specialized cells/networks
replicating and keeping the original DNA. For example, the Egmont
Group works in tandem with the Camden Assets Recovery Inter-Agency
Network (CARIN), providing a rather operational assistance in the field of
asset tracing, freezing, seizure, and confiscation. CARIN has 54 member
states, and its permanent Secretariat is taken care of by Eurojust and
Europol. Similar networks have emerged in Africa, Asia, and South
America (Prieto del Pino 2019).
Market abuse is a traditional area for these networks, although they
usually have a much more centralized structure (Raustiala 2002, p. 28
et seq). Whereas regarding money laundering and asset recovery there is a
myriad of bodies and organizations, there is only one actor concerned
with market abuse: the International Organization of Securities
Commissions (IOSCO), an international body that brings together securi-
ties regulators worldwide.4 IOSCO is essential as both a standard setter
and an enforcer, and it also plays a significant role in the investigation of
irregularities in securities markets. The Objectives and Principles of Security

Regulation and the Methodology for Assessing Implementation of the IOSCO
Objectives and Principles of Securities Regulation lay the foundations for
securities or stock market regulation. For instance, these documents pro-
vide in detail the powers or competences of authorities and the standards
of conduct for market intermediaries and issuers. From a regulatory
enforcement perspective, IOSCO’s main contribution is cooperation
through the Memoranda of Understanding (MoUs) created in 2002
resembling those that had already been entered into by the United States
Securities Exchange Commission (SEC) with many countries. These
agreements are signed by administrative authorities, and they can be mul-
tilateral or bilateral; they actually entail the establishment of an ad hoc
cooperation mechanism based on exchanging and sharing information
among securities market authorities.5 In order to render cooperation more
effective, the memoranda required to file any documents recording stock
market transactions. Although the point was to set up a cooperation sys-
tem allowing to exchange information among administrative authorities,
it does not prevent judges or prosecutors from benefitting of the shared
information to investigate insider trading or market abuse.6
The strategy underlying the expansion of competition or antitrust law
is similar to that implemented for financial markets. The United States also
led the way in this field by expanding its regulatory model, assisted by
long-standing organizations such as the World Trade Organization (WTO)
and the OECD (Raustiala 2002, p. 35 et seq), as well as of the ICN,
bringing together almost all antitrust authorities in the world. The wide
spread of leniency programs in competition law infringements has a lot to
do with the ICN’s activity,7 as well as the guidelines to impose effec-
tive fines.8
There is another transgovernmental network in the field of environ-
mental law: the International Network for Environmental Compliance
and Enforcement (INECE).9 In contrast with the aforesaid bodies, this
network is not exclusively made up of supervisors. It has a more pluralist
composition; it is a partnership of regulators, researchers, prosecutors,
judges, police officers, scholars, NGOs, and companies. Its work is based
on exchanges and training, among other activities, but INECE is not as
focused on standardization and harmonization. Particularly regarding
criminal law, the purpose of INECE is to share and exchange knowledge
and to provide training to better prosecute environmental crimes.
22 A. NIETO MARTÍN
Transgovernmental networks also have a central role in the fight against

tax evasion and corruption. Through their aforesaid mitosis, slowly but
surely, the FATF10 and G2011 have extended their scope of power to cover
tax fraud and corruption. However, regarding tax evasion, a more formal-
ized body such as the OECD plays the leading role through hard law
(Convention on Mutual Administrative Assistance in Tax Matters) and soft
law instruments (Harmful Tax Practices and Tax Transparency reports)
encouraging the exchange of information on potentially harmful tax prac-
tices. As for corruption, classic organizations lead the way, along with pri-
vate entities and NGOs.
Some G7 summits have dealt with organized crime, addressing matters
such as human trafficking and forged documents. The World Economic
Forum, which hosts an annual summit in Davos, has published two docu-
ments regarding these issues: the Global Agenda Council on Illicit Trade
and the Global Initiative Against Transnational Organized Crime.12
There are specific transgovernmental networks, like the Australian Group,
dealing with weapon trafficking. The Australian Group is an informal
forum of industrialized countries that provides a platform to exchange
information regarding the trade and development of biological and nuclear
weapons. The Missile Technology Control Regime (MTCR) and the
Nuclear Suppliers Group (NSG) have similar purposes. There are other
initiatives of the kind focusing on the traffic of small arms and light weap-
ons, which are more closely related to organized crime (García 2006).
2 International Organizations

It would be wrong to say that international institutions or organizations
are a new actor within international criminal law. Following World War I,
interstate cooperation in the field of criminal justice has mostly taken place
within the cooperation frameworks provided by international organiza-
tions. In practice, ever since the League of Nations, states have refused to
draw up international conventions leaving out international organizations,
except for extradition treaties or agreements (Joutsen 2011, p. 122 et seq).
There are several factors that define the international organizations’
involvement in international criminal policy. These factors have also trans-
formed organizations’ role; they now have their own salient position, not
necessarily tied to states’ will. Indeed, states have little room for maneuver
in terms of criminal policy when it comes to adopting some of the major
treaties or conventions. Disregarding international criminal policy in mat-

ters like drug trafficking or organized crime is simply not possible.
It is hard to define the notion of “international organization.” In fact,
according to some of the extremely broad definitions, international orga-
nizations could also qualify as transgovernmental networks, although hav-
ing a low level of formalization, like the G20 (on the definition of
international organizations Álvarez 2005, p. 139 et seq). This section
exclusively examines traditional organizations like the UN, the OECD,
the World Bank, or the IMF; these are characterized by their formal
decision-making processes, based on member states’ votes, and by their
scope of powers or competences, which is carefully provided in these orga-
nizations’ founding charters.
International organizations came into being and operated based on
delegation of powers and consent. Sovereign states used to seek coopera-
tion within a given area, specified in the organizations’ founding charters.
International organizations would operate as tools for foreign action in
that area, surrendering to states’ will. Given this framework, there was
never any problem regarding international conventions. As for criminal
law, this framework conformed to the principle of legality (rule of law).
Member states negotiated the agreements on an equal footing, on the
basis of “horizontal multilateralism,” and decision-making was based on
consensus and unanimous vote (Ortega Carcelén 2014, p. 139 et seq).
State representatives, who had to be duly empowered or authorized to
give their consent, were in charge of the negotiations. Within the treaty-
making process, following adoption, international conventions often
require national parliamentary approval, ratification, and publication in
the official gazette in order to become effective. If the convention lays
down criminal law obligations: (i) the specific domestic criminal law provi-
sions must be enacted, and (ii) the criminal law obligations must be trans-
posed into national law (an organic act, in Spain). Reservations allow for
“tailor-made treaties,” enabling states to exclude any provisions that they
are not willing to accept.
International organizations were strictly precluded from adopting any
acts or decisions that could directly (without previously enacting any
domestic provisions) restrict citizens’ rights. Therefore, international
organizations did not have their own directly enforceable criminal law.
This traditional approach to international institutions has shifted in the
last few decades. The roles have been reversed, and these international
organizations are no longer international law instruments subject to the
24 A. NIETO MARTÍN
states. They have gone from being mere tools to having their own agenda.
In fact, international organizations often set the legislative agendas of gov-
ernments and legislatures (Kwakwa 2011). Furthermore, the principle of
state equality is more myth than reality. Many countries are unable to have
an actual influence on their provisions. International bureaucracies and
organizations’ governing bodies are far from well-balanced. Most coun-
tries do not really have a choice when it comes to adopting international
conventions. If they decided not to enter into an international treaty,
many states would bear almost unbearable reputational costs and they
would be excluded from development aid and international assistance.13
Aside from this aspect, there are three diverse phenomena that truly
define the current international situation and touch on the global law
debate. First, decision-making bodies of international organizations are
steadily moving apart from the assemblies and hence from states’ will. In
parallel, the various committees and bodies that are being created allow
NGOs and transgovernmental and multinational networks to get involved
in the setting of objectives and the issuance of recommendations, thereby
allowing these NGOs and networks to play a more significant role and
exert greater influence in international organizations’ rulemaking proce-
dures. Second, international organizations have slowly expanded their
original scope of action, which is particularly important when it comes to
explaining their involvement in global law, such as that of the OECD. Third,
the use of new regulatory instruments, such as soft law, applied alterna-
tively or jointly with international conventions, have allowed the aforesaid
actors to increase their influence. The negotiation of international treaties
is sometimes slow, burdensome, and uncertain due to certain states’ oppo-
sition. In contrast, soft law, guidelines, and recommendations are smoother
and lead to similar outcomes (Ortega Carcelén 2014; Álvarez 2011).
Sometimes, these guidelines apply jointly with the conventions, framing
these treaty provisions, and thus making the regulation of these guidelines
even more necessary.
2.1 The Increase of Regulatory Capacity

International organizations have become independent legislative actors.
They tend to have their own agendas, separate from states’ agendas, which
often exceed the powers or competences originally vested in the relevant
international institution. Surprisingly, for instance, whereas development
banks were conceived to support infrastructure construction projects,
their scope of powers now covers the fight against corruption and money
laundering. The same applies to the OECD, a global leader in interna-
tional criminal justice policy regarding the fight against corruption, money
laundering, and tax fraud. This extended scope of competences can be
explained on the basis of the so-called doctrine of implied powers, but is
also based on the emergence of cross-cutting matters within international
policy. For example, concerns about good governance connects their
activities (inter alia, the provision of financing or economic aid) with cor-
ruption. Financial market integrity, human rights, or the need to generate
legal certainty for foreign investments are usually good reasons to expand
their agendas.
nited Nations and the Security Council

U
We must focus on the United Nations. Obviously, the only organization
with a general or sweeping scope in the world can include in its agenda
criminal justice issues, mainly within the framework of the UN Economic
and Social Council (ECOSOC) and the United Nations Office on Drugs
and Crime (UNODC).14 Both bodies have worked hard, although their
work has long gone unnoticed. They cover many areas of traditional, and
unrelated to globalization, criminal justice policy. There was a turning
point in the late 1980s. Three major UN conventions on criminal matters
(corruption, organized crime, and drugs) were adopted, and they brought
about a revolution, not as much regarding prosecution but more so in the
area of judicial cooperation.15
However, the most remarkable United Nations development involves
the Security Council steadily taking on more power at the turn of the cen-
tury.16 First, the Rome Statute empowered the Security Council in con-
nection with the International Criminal Court (ICC). The Council can
enable the Court to rule on facts that occurred in non-signatory countries.
Within the context of the aforesaid evolution of international law, this
development can be traced to the progressive Grotian tradition stemming
from the end of World War II. The assumption of powers by the Security
Council is directly linked to Nuremberg’s legacy. This is why we focus on
the extended scope of powers resulting from the reinterpretation of “the
maintenance of international peace and security” under Article 39 of the
UN Charter, which has allowed the Security Council to encompass within
this notion areas such as terrorism or piracy (Macke 2010; Therani 2014;
Meyer 2012, p. 165 et seq; Mitsilegas 2016, p. 204; Talmon 2005a, b).
26 A. NIETO MARTÍN
This is probably the point where the extension of the concept of security
discussed above has been most important.
The Security Council resolutions on terrorism have altered the sources
of international law (Therani 2014, p. 60). Some of these resolutions have
had similar effects to those of EU Directives, actually requiring states to
define and provide for new crimes (i.e., to criminalize new conducts) in
their criminal legislation.17 Other resolutions have gone even farther,
establishing a true supranational ius puniendi, such as the blacklisting sys-
tem in terrorism discussed in detail below. Self-evidently, this ius puniendi
or right to punish in the hands of the Security Council has been severely
criticized. On the one hand, the drafting and rulemaking procedure is not
as transparent as in international conventions; indeed, resolutions circum-
vent the paramount instrument for international cooperation, that is, the
treaties. On the other, resolutions are adopted by the few states that make
up the Security Council (Krisch 2010, p. 154 et seq).
Effectiveness Strategy
Aside from the distinct Security Council’s ius puniendi, the new strategy
implemented by international institutions, aimed at ensuring the effective-
ness of the relevant provisions, has allowed for their increased regulatory
capacity. Internal rules or norms under the Kelsenian model are effective
because they (i) are enacted in accordance with the established procedure,
and (ii) abide by each legal order’s rules of recognition. The only interna-
tional rules provided in classic models or approaches, such as that of Article
1 of the Spanish Civil Code, are international conventions. As noted
above, these conventions fit this effectiveness framework perfectly: through
ratification, publication, and transposition, if appropriate.
Currently, achieving the effectiveness of international law is much more
complex; it depends on three main factors.18 First, the organizational
capacity to seek an internal and external support network, not only during
the rulemaking and approval procedures, but also throughout the entire
life of the provision (including the transposition and enforcement
thereof).19 States that intend to turn a given rule into an international
provision, that is, wishing to “internationalize” a legal provision, through
an international organization, must also seek this support network.
Second, technical legitimacy must be achieved through groups of experts,
task forces, subcommittees, or transgovernmental networks.20 Third, there
are costs and burdens for not complying with international provisions.
Assessing international organizations’ degree of compliance is an essential
strategy to ensure the effectiveness of international law provisions. The

“assessment-reputational cost” binomial (which, as discussed above,
applies regarding transgovernmental network guidelines or recommenda-
tions) is also applicable with regard to international conventions. Costs are
not only reputational but also economic, and often unbearable by states.
Non-compliance with a given convention or treaty can entail that the state
in breach be left out of international funding schemes (Kingsbury 1998,
p. 599 et seq). To some extent, these three factors allow to use soft and
hard law instruments interchangeably. Hard law and soft law provisions
are often interchangeable or alternative, but they can also support or
underpin each other and be complementary. The same is true of transgov-
ernmental network standards and rules stemming from self-regulation or
corporate standardization.
Generally, international organizations that wish to launch a new regula-
tion must create a favorable environment by holding meetings and gather-
ing experts, as well as by publishing works that put forward the topic. It is
important that other international institutions join the project, which
must also include transgovernmental networks and private stakeholders.
The point is to “manufacture consensus” so that a given international
provision seems totally necessary and nobody questions its timing.
Consensus manufacturing is aptly exemplified by the not implemented
international notion of identity theft (Nieto Martin, 2010). It all began
with the United Nations Commission on International Trade Law
(UNCITRAL). Soon after these first steps, the General Assembly adopted
a Resolution, and a group of experts was created to draft a report. In paral-
lel, there were many reports, projects, and recommendations from other
international organizations, including the OECD, the IMF, the EU, or
the Council of Europe. Expectedly, the private actors concerned (software
companies or banks, inter alia) rushed to attend the meetings and quickly
started to issue standards. Even in the absence of draft legislation, the
documents issued by these organizations amounted to a new kind of
scholarly or scientific literature, including cross references and repeated
arguments that gave rise to an official discourse and many figures and sta-
tistics on the harm or profit resulting from unlawful activities or miscon-
duct (this is what Slaughter calls “governance by information,” 2014,
p. 177 et seq).
As shown above, the passing of regulation requires joint action, which
can be traced back to the notion of relational sovereignty. Organizations
and states put a similar effort into the creation and advancement of the
28 A. NIETO MARTÍN
network. This is a similar phenomenon to that of transgovernmental net-

works. When talking about specific countries, there is no doubt that the
United States has played the most prominent role.21 Corruption in inter-
national trade provides the best-known example of US leadership. It all
began with an express decision of the Clinton administration. The United
States picked an international organization, the OECD, because Clinton
administration officials thought it would be easier to adopt a convention
within this international institution. In contrast with the United Nations,
where political tensions between developed and developing countries
make it harder to carry out certain initiatives, the OECD is not as politi-
cized, since (i) it is made up of the most economically developed coun-
tries, and (ii) its internal rulemaking procedures are extremely flexible;
they have little in common with the UN’s quasi-parliamentary system
(Meyer 2012, p. 497).
International corruption aptly exemplifies how states enjoy room for
maneuver to submit their proposals to the friendliest institutions (forum
shopping). When no institution seems to be friendly, states can rely on
bilateral instruments, such as the Anti-Counterfeiting Trade Agreement
(ACTA). The adoption of this agreement would have considerably
increased the punishment of intellectual and industrial property crimes.
Rulemaking procedures within international organizations provide a mini-
mum level of transparency, which nonetheless disappears altogether within
the framework of multilaterally negotiated agreements. Self-evidently, the
lesser the transparency, the greater the lobbying.
States tend to internationalize lines of criminal justice policy, there
being various reasons for their behavior. Usually they seek to expand an
internal (domestic) regulation looking out for their own interests in inter-
national trade. However, sometimes there are purely internal (domestic)
reasons, as in the so-called legislative offside or policy laundering: a well-
known phenomenon in European criminal policy. If they expect some
trouble adopting a given regulation internally, states try to get an interna-
tional institution to embrace their initiative. Once their initiative has gar-
nered international support, domestic obstacles tend to fade away (Muñoz
de Morales 2011).
Civil society can also play a major role when the international institu-
tions’ legislative machinery is set in motion. The role of certain NGOs in
anti-torture treaties or anti-personnel mine ban conventions is also note-
worthy, as is the impact of trade unions within the International Labour
Organization (ILO). Civil society did have influence on the adoption of
the Rome Statute (Lelieur 2009). The media also played a decisive role in
the area of human trafficking. Certain activists or scholars can play an
important part too. Although their role is far from that of states in terms
of initiative, their involvement can increase technical or knowledge-based
legitimacy. This is the case for experts who exert a major influence by
advising international organizations (Sieber 2009).
The private sector’s presence in these legislative or rulemaking pro-
cesses differs from civil society’s, since civil society organizations (theoreti-
cally, at least) aim to protect collective or group interests. International
corporations or some specific lobbies can have a decisive influence during
both the setting in motion and transposition of international pieces of
legislation. For instance, in the field of money laundering, the banking
sector played a central part when launching the regulations. Regarding
corruption, companies have been essential in the enforcement of anti-
corruption rules through regulatory compliance and by accepting a crimi-
nal policy based on private enforcement.
It could use a pentagon to illustrate these networked stakeholders that
interrelate with each other to produce international provisions within
international institutions or organizations. Not all the actors have equal
weight, and the “balance of power” changes depending on the regulation
at hand. Sometimes, certain actors hardly play a role. For example, private
stakeholders and civil society are barely involved in criminal justice policy-
making concerning drugs, organized crime, or terrorism. Lately, interna-
tional organizations have been playing an increasingly prominent role in
various fields, having their own legislative agenda. Going back to the pen-
tagon metaphor, note that the efforts and influence can never be depicted
using a regular polygon, that is, not all the sides and angles—the driving
forces of internationalization—are equal. In fact, the sides of the pentagon
could even be unaligned; they could not come together and push in oppo-
site directions instead. Think of a country’s specific interests pushing that
particular country to oppose a given international provision (Sieber 2009,
p. 504, 497).
Moreover, looking at our pentagon under the microscope, we would
see that some of the pentagon’s sides break down into smaller segments.
This is the case for the national side, where the “legislative offside” shows
the prevalence of the executive branch. Indeed, it is the executive who
kicks the ball out of the domestic parliamentary or legislative arena to the
international ground. All this kicking impairs the legislature’s ability to get
involved and play a role; it is in offside. This also occurs within
30 A. NIETO MARTÍN
international organizations. We assumed that harmonization mostly

results from international conventions and hard law provisions, but human
rights courts, that is, the international organizations’ “judiciary,” also play
a major part.
The pentagon metaphor can help to examine the presence of the differ-
ent driving forces over the life of the rule or provision. The effectiveness
of international organizations’ provisions depends on having a support
network not only at an initial stage, but also throughout the life of the
provision at its transposition and enforcement stages. Some sides of the
pentagon can be short when the regulation is proposed, but they might
grow during implementation and enforcement.
The passing of international provisions and their subsequent effective-

ness not only requires a network of actors, but also a regulatory support
network. Soft law provisions and transgovernmental network guidelines
and recommendations can be very relevant in this regard. UN conventions
followed by General Assembly or Security Council recommendations are a
good example of intra-organization regulatory support.22 Recommen
dations embody the consensus and can be helpful to interpret conven-
tions.23 Instead of recommendations or guidelines, organizations some-
times adopt model rules, another type of soft law instrument aimed at
assisting states in fulfilling their obligations.24 The OECD has another
strategy: it flanks its conventions with supporting soft law, like it did with
the Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions (the Anti-Bribery Convention). Along
with this Anti-Bribery Convention, the OECD published several guide-
lines for companies as well as the highly influential Good Practice Guidance
on Internal Controls, Ethics and Compliance and a semi-official
interpretation of the said convention (Nieto Martin, 2012). Regulatory

support is not always intra-organization. Sometimes, other international
organizations or transgovernmental networks adopt supporting soft law
provisions. This symbiotic relationship allows to clarify or complete the
convention and makes it more legitimate.
It is worth noting that soft law is not always subordinate to hard law. In
fact, soft law and hard law provisions can be interchangeable and there is
communication or interoperability between them. What really matters is
not the type of provision, but the support it garners. Regarding prison law,
the Council of Europe has prioritized soft law over hard law. The Council
of Europe could have very well adopted conventions, but its set of recom-
mendations in the field has been as effective as would have been adopting
a convention (Rodríguez Yagüe 2019). There are four factors accounting
for this, which provide a practical example to explain soft law’s legitimacy
and effectiveness.
First, there is a regulatory support network including other soft law
instruments, namely UN recommendations. Second, it is worth highlight-
ing how recommendations have entered the legal order and particularly
how they have become enshrined in written positive (statutory) law, by
being adopted by the European Court of Human Rights (ECtHR) as
interpretation standards for the convention.25 The use of soft law by courts
of justice is just one of the gateways taken by soft law provisions to enter
the legal order, but there are other gateways or access points.
Recommendations can be used to enshrine or state an international custom
or to declare that we are in the face of ius cogens or peremptory rules.26
Third, recommendations are successful due to their high technical
legitimacy. In order to fully understand the effectiveness of recommenda-
tions, it is worth referring to the role of the inter-governmental Council of
Europe Conferences of Directors of Prison and Probation Services
(CDPPS), including judges, probation officers, and so on. The conclu-
sions of the CDPPS provide the basis for subsequent recommendations.
Finally, the fourth factor is the evaluation system. The European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (the Committee for the Prevention of Torture
or CPT) shall assess country compliance with the recommendations.
Member states of the Council of Europe must report periodically to the
CPT. Also, the CPT may organize visits to places of detention and make
public statements, which is an instrument that entails high reputational
costs for the countries concerned.
32 A. NIETO MARTÍN
The Council of Europe increases technical legitimacy through special-

ized knowledgeable bodies, but this is not exclusive to the Council of
Europe. Other international organizations do it too, particularly the
United Nations. Yet again, as noted when discussing transgovernmental
networks, these specialized bodies are created through mitosis. As a result,
there is no debate on prospective international provisions in the Assembly,
where states are represented. Rather, debate takes place within these tech-
nical, specialized, and knowledge-based subcommittees. This mitotic
trend is particularly remarkable in the UN. Although there is already a
subcommittee specialized in criminal justice, like UNODC, the United
Nations constantly creates new specific bodies for every area: terrorism,
weapon trafficking, and so on (Álvarez 2005, p. 334).
Assessments or evaluations are performed jointly by the network of
actors and provisions. Also, the provisions’ technical legitimacy, an addi-
tional factor in the adoption and effectiveness of international regulation,
relates to both hard law and soft law. Every “new generation” treaty pro-
vides for an assessment or evaluation system, despite of the system’s desig-
nation or the evaluation methodology applied. Sometimes (regarding
corruption within the OECD framework, for instance) states must con-
duct a peer review monitoring system. Some other times, a specific com-
mittee may be created, like the Council of Europe’s Group of States
against Corruption (GRECO) or the CPT. The UN prefers the specific
committee approach, as evidenced by the United Nations Security Council
Counter-Terrorism Committee (CTC). This body is tasked with assessing
how member states implement Security Council resolutions providing for
blacklists.27 These committees can be the same technical or knowledge-
based body established at the developing stage of the convention, so the
roles are interchangeable. The pre-regulatory and evaluation stages are
interconnected, as shown by how the evaluations conducted by the CPT
give rise to new recommendations (Nieto Martin 2016).
The UN has several transgovernmental or inter-governmental commit-
tees that do not quite evaluate member states, but rather monitor compli-
ance with the treaties. The conclusions of these groups or committees
often turn into recommendations. Regarding corruption, this is the case
of the Open-ended Intergovernmental Working Group on the Prevention
of Corruption. As for organized crime, there is the Global Programme
against Money-Laundering, Proceeds of Crime and the Financing of
Terrorism (GPML). The GPML is tasked with drafting model legislation
to assist countries in fulfilling their obligations with regard to money laun-

dering and terrorism financing.
As noted above, getting a bad report or a negative evaluation gives rise
to costs in terms of relational sovereignty, and it also affects the states’ reli-
ability and ability to be part of networks. However, there can be even
greater costs. For example, as a result of negative evaluations, states can be
denied development loans or judicial cooperation can be hindered, as is
the case under European standards. There might also be implications for
commercial transactions and trade relations. A negative anti-corruption
evaluation forces companies that want to do business in the country to
conduct a more thorough due diligence process.28
2.2 Supranational Sanctions
One of the most salient features of international organizations’ ius puni-
endi is the creation of sanctions systems falling within the scope of criminal
law (on the concept of sanction Donini and Foffani 2018; Maugeri 2018).
Under these systems, sanctions are directly applicable to individuals and
companies. Usually, states only get involved at the enforcement stage, in
order to enforce the sanctions or penalties imposed by the relevant institu-
tion. These administrative sanctions or penalties are a paramount example
of global administrative law, aimed at setting out a common guarantee
framework for these sanctions proceedings (Mitsilegas 2016, p. 236 et seq;
Krisch 2010, p. 153 et seq).
U administrative Sanctions
E
The EU has the most notorious supranational punitive law system. Since
its inception, this system allowed to impose administrative sanctions or
penalties. Everyone knows about the European Commission (EC) fines
for infringements of competition law. However, over the last few years,
these punitive powers have increased and they now cover the financial
market. As a result of the 2008 economic crisis, the EU centralized its
monitoring and punitive powers regarding both the banking sector and
the financial market. This “supranationalization” is closely tied to the
weakening of national supervisory authorities vis-à-vis a global financial
system. The monitoring powers of national central banks, a pivotal ele-
ment of Westphalian sovereignty, are also in a critical moment. In fact, the
substantive provisions on which this supervision is founded do not arise
from any national legislature. Rather, they stem from a transgovernmental
34 A. NIETO MARTÍN
network: the Basel Committee on Banking Supervision (BCBS), whose

members are central banks and banking supervisors. The applicable regu-
latory framework is what is known as Basel III. As for financial markets, we
already discussed the importance of the International Organization of
Securities Commissions (IOSCO) and G20’s task force: the Financial
Stability Board (Brodowski 2019; Leñero Bohorquez 2014; Leñero
Bohórquez and Darnaculleta i Gardella 2015).
Within the banking system, the Single Supervisory Mechanism (SSM)
empowers the European Central Bank (ECB) to oversee all significant
banks in the participating countries through direct supervision. The ECB
has the power to impose sanctions, but also to conduct on-site inspec-
tions, interview bank executives, impose production orders, and so on.29
Securities market regulation is also subject to a centralized structure,
although with its own specificities. The European Securities and Markets
Authority (ESMA), the EU’s securities markets regulator, also has sanc-
tioning powers over credit rating agencies. However, the authority to
punish market abuse remains with national securities agencies and, ulti-
mately, within the scope of domestic criminal law. Regardless, ESMA’s
role is tremendously significant. The Market Abuse Regulation (MAR)
clearly suggests that ESMA retains the ability to oversee the sanctioning
powers of national agencies.30
EU administrative punitive law (or, better said, the set of EU’s sanc-
tions regimes) is not a completely homogeneous package, and it could
have some shortcomings in terms of safeguards or guarantees. For instance,
it does not totally fulfill the nemo tenetur se ipsum accusare principle, since
companies under investigation are threatened with sanctions if they do not
produce documents that can sometimes be self-incriminating (Blumenberg
and Nieto Martín 2010). The new administrative sanctions imposed by
the ECB (classified as “administrative penalties” by Art. 18(1) of the
Single Supervisory Mechanism Regulation) have consolidated new due
process rights. For instance, the investigating bodies and the sanctioning
or decision-making bodies must now be different. However, it is also wor-
rying that rights of defense seem under-regulated. Shockingly, the well-
established acquis in terms of rights of defense within competition law has
not been embraced by the EU regulations governing new sanctions. A
distinct feature of EU punitive law is that it chooses not to be applicable
to natural persons, although in the banking sector the ECB can request
national competent authorities to impose sanctions on natural persons
(Allegrezza and Voordeckeers 2015; Allegrezza 2020).
The EU powers or competences and their specific status within interna-

tional institutions are a different issue altogether. Since its inception, the
EU has been empowered to adopt legal provisions and decisions with a
direct impact on citizens. This is precisely what makes it different from the
remaining international organizations. It is also the reason why the emer-
gence of a supranational sanctions regime in the hands of the UN Security
Council in such a specifically criminal area like terrorism has stirred so
much debate.
UN Blacklisting
Since the 1990s, acting under Chapter VII of the United Nations Charter,
that is, seeking to maintain international peace and security, the UN
Security Council has been implementing the so-called targeted or smart
sanctions (an overview in Subsidiary Organs of the United Nations Security
Council, Fact Sheets, 2019). The purpose thereof was to prevent the col-
lateral damage inflicted to civilian populations as a result of economic
embargoes on certain countries whose governments were considered a
threat to security. These new sanctions include confiscations, movement
restrictions (like travel bans), and other restrictions such as being denied
access to weapons. Although there are roughly 14 sanctions regimes
affecting more than 1000 natural persons, the most prominent ones are
those targeting Islamic terrorism. Currently, there are 300 “blacklisted”
persons for having ties to Al-Qaida, Bin Laden, or Daesh.
At first, the rationale of “smart” sanctions was for them to be addressed
to state officials to exert political pressure on certain countries. This is why
the UN relied on diplomatic protection to provide the relevant safeguards
and guarantees to individuals. However, terrorism blacklists are slowly
departing from this model. By means of the so-called Taliban Resolutions
(UN Security Council Resolutions 1267 and 1333), the Security Council
imposed sanctions on natural persons that did not qualify as state officials
for the first time. In 2001, a few days after 9/11, Resolutions 1373 (2001)
and 1390 (2002) extended the blacklisting system to people with ties to
Al-Qaida, Bin Laden, or Daesh. It is a milestone regarding the construc-
tion of a global punitive law, since persons no longer need to have links
with governments or states in order to be sanctioned; it suffices to be
linked to a terrorist organization.
Blacklisting thus became a concealed punitive law system. It departs
from a criminalized behavior, that is, having ties with terrorist groups; this
behavior leads to a decision: that the person or entity be blacklisted; also,
36 A. NIETO MARTÍN
being blacklisted triggers a set of sanctions, namely the freezing of assets,

being prevented access to any other country or the supply of weapons.
Sanctions are imposed on the motion of UN member states by administra-
tive bodies that report to the Security Council, that is, the Sanctions
Committee. Sanctions have a global scope. All states are bound by black-
listing, regardless of where the facts occurred or the party’s nationality or
place of residence.
At least when it was first created, the design of this blacklisting system
had several shortcomings in respect of the rule of law. The behavior lead-
ing to the inclusion in a blacklist was defined vaguely and there was no real
chance of defense, neither before nor after the sanction was imposed. The
party concerned had no access to any evidence produced by states to
request the party’s inclusion in a blacklist. On top of that, the most impor-
tant information for a listing request is usually secret information from
intelligence services. At its inception, the blacklisting system did not allow
for review by the decision-making body or any other. A core element of
due process like judicial review was nowhere to be found.
The UN blacklisting system suffered a serious setback as a result of the
ECtHR ruling in Kadi. The Court found that the blacklisting system was
contrary to the fundamental rights of the European Union, which had
embraced UN provisions through a regulation (Mitsilegas 2016, p. 245
et seq; Krisch 2010, p. 160 et seq; Nieto Martin 2008; Cameron 2008).
Based on this judgment, the Security Council modified its sanctions
regime in order to make it more compatible with the rule of law, thereby
improving the definition of criminal behaviors giving rise to sanctions. For
instance, Resolution 1617 tries to fulfill the principle of determination by
providing a more accurate definition of what being “associated with”
Al-Qaida really means. The UN Security Council had already established
certain limits in order for persons with frozen assets to have a minimum
amount of funds to fulfill their vital needs.
Additionally, the “procedural” framework was enhanced. On the one
hand, the ombudsperson was created (although not for all smart or tar-
geted sanctions). The UN also provided for the “Focal Point for
De-listing,” an independent authority under the Sanctions Committee,
thus reporting to the Security Council, who receives petitioners’ de-listing
requests. However, its recommendations are still non-binding. Ultimately,
only the Sanctions Committee has listing and de-listing powers. The
Sanctions Committee must briefly state the reasons for blacklisting a given
person or entity. In spite of these efforts, the process lacks in transparency
and is far from fully respecting the rights of defense and abiding by due
process standards. If states consider that their decision must be kept con-
fidential for security reasons, there is no way to verify or otherwise assess
the information they used. The Security Council can even refuse to dis-
close which countries are proposing names for a blacklist.
The legal nature of these sanctions is open for debate. Some might
argue that their purposes are more deterrence-oriented than punitive.
These targeted sanctions involve preventive confiscation of property if
there is a risk that it be used to finance terrorist organizations. In terms of
guarantees or safeguards, there is no doubt that these sanctions fall within
the scope of criminal law in its broadest sense. Therefore, the competent
bodies must comply with the rights of defense, and there must be a high
standard of proof leaving no room for reasonable doubt as to the person’s
or entity’s connection with terrorist groups. On that basis, as in the non-
conviction based confiscation, we could admit a presumption that these
assets are dangerous insofar as they could be used for terrorism financing
(Therani 2014; Sieber and Vogel 2015).
orld Bank Sanctions Systems

W
The World Bank’s blacklisting system can be even more shocking than that
of the UN Security Council. The World Bank’s sanctions system falls
within one of last decade’s most significant approaches to criminal justice
policy: criminal liability of legal entities and compliance in areas like cor-
ruption (Selvaggi 2015; Manacorda and Grasso 2018).
The World Bank’s sanctioning powers stem from the Articles of
Agreement of the International Bank for Reconstruction and Development
(IBRD). Article I(i) provides that one of the IBRD’s goals is to facilitate
the investment of capital for productive purposes. The IBRD provides
finance (loans), managed by the World Bank (WB), to governments and
publicly owned companies for infrastructure projects. These funds come
from member state contributions as well as from bonds issued by the WB
as public debt that are traded in the capital market. Accordingly, the WB
is subject to the principle of sound administration regarding the funds
made available thereto (Art. 5(III), Section 5(b)). According to the WB,
this fiduciary duty (i) provides the foundations of the sanctions system,
which is ultimately aimed at ensuring that the funds contributed by donors
be used efficiently and fairly, and (ii) accounts for the sanctions system’s
scope of application: any companies participating in World Bank-funded
projects.
38 A. NIETO MARTÍN
The World Bank’s sanctions system was set in motion in 2001. Since
then, it has been improving and embracing criminal justice safeguards and
guarantees (Boisson de Chazournes and Fromageau 2012; Leroy and
Fariello 2012). The so-called Thornburgh Report was essential in this sys-
tem’s development. The Thornburgh Report results from a key event: the
2012 agreement between all development banks to establish a mutual rec-
ognition system under which the sanction imposed by a bank is immedi-
ately acknowledged by the rest (“cheat and steal from one, get punished
by all”). Along the lines of the EU’s rationale, mutual recognition called
for common and uniform guarantees, thereby harmonizing the various
development banks’ sanctions systems. Mutual recognition further
increases the general deterrence purpose of sanctions, since it entails being
excluded from all ongoing public works and projects worldwide financed
by development banks.
In a nutshell, the World Bank’s system is as follows. There are four
standardized definitions of what qualifies as a “sanctionable practice,” bet-
ter determined and more accurately defined than the Security Council’s
blacklist criminalization of conducts, namely: corrupt practice, fraudulent
practice, collusive practice, and coercive practice. The WB’s quasi-judicial
administrative process for sanctioning companies and individuals has one
salient feature: the division between (i) the authority who conducts the
investigation and, if it finds sufficient evidence, launches a sanctions case
by submitting a Statement of Accusations and Evidence (SAE)—the
Bank’s Integrity Vice Presidency—and (ii) the authority that actually
imposes the sanctions. The Evaluation and Suspension Officers act like
some sort of first instance court, confirming or dismissing the charges and
sanctions case submitted by the Integrity Vice Presidency. If the sanc-
tioned party (designated as the “Respondent”) wants to challenge the
decision, it may bring an appeal before the Sanctions Board, made up of
three Bank staff and four non-Bank staff members, and chaired by one of
the independent members. The firms are subject to the following sanc-
tions: (i) restitution, borderline between civil liability and confiscation; (ii)
a letter of reprimand, regarding minor misconduct, can be aimed at certi-
fying that the sanctioned party has been involved in a corruption case.
However, debarment is the most serious and famous sanction. Being
blacklisted, either permanently or temporarily, prevents companies from
participating in World Bank-financed projects.
Currently, in line with recent developments in the sanctions systems
against legal entities, the “baseline” sanction of debarment is now subject
to probation or, as the WB puts it, there is a sanction of “debarment with

conditional release.” The sanctioned party may be released (or the sanc-
tion suspended) if the party fulfills a set of conditions imposed by the WB,
usually including the improvement of the company’s compliance program.
The WB has also created an Integrity Compliance Office, tasked with
monitoring whether the improvements are effective. The Bank has also
established a Voluntary Disclosure Programme, that is, it has opened the
door to a “self-reporting” and leniency system. Prior to being investi-
gated, companies may report their own sanctionable practices to the Bank.
If a company is eligible for this program, the Bank does not sanction the
company, which shall generally be required solely to improve its compli-
ance program. For these procedures, a supervisor is also appointed.
The World Bank’s sanctions system is much more in line with the prin-
ciples of punitive law than UN’s blacklisting system. It is considerably
more transparent. It is possible to check the Bank’s website for the sanc-
tioned companies. On top of that, the sanctioning decisions are published
as some sort of case law collection. The main shortcoming in this regard is
the lack of transparency regarding the settlements between the Integrity
Vice Presidency and the companies when the sanctions proceedings get
suspended.
In fact, the main issues posed by this supranational system relate to its
connection with the state-based ius puniendi and its blatant disregard for
bribery and corruption of public servants and state officials (Soreide et al.
2015). Surprisingly, sanctions are exclusively focused on one of corrup-
tion’s main actors (companies or corporations) and the sanctions system
seems oblivious to governments and their justice systems. The World
Bank’s sanctions systems could have entailed reporting the sanctionable
practices to national authorities. Indeed, the WB discloses its investiga-
tions to national law enforcement authorities in case they want to initiate
criminal proceedings.
Nevertheless, the WB’s strategy is both reasonable and consistent with
the so-called privatization of the fight against corruption. Focusing on
legal entities entails siding with a widespread criminal justice approach.
This approach comes hand in hand with the extension of criminal liability
to legal entities, and it is particularly present in the area of anti-corruption:
taking advantage of companies’ self-regulation for the prevention and
detection of crimes committed within those companies (Nieto
Martin 2013).
40 A. NIETO MARTÍN
The WB must remain politically neutral, and holding companies liable

prevents collateral damage. Self-evidently, the most straightforward way to
avoid corruption would be excluding from the aid regime (i) any states
whose officials have been involved in corruption-related cases; or (ii) any
countries that fail to implement the necessary reforms in order to establish
an acceptable judicial system. This approach, however, could inflict col-
lateral damage to civilian populations just like the UN embargoes.
In sum, there is a shared concern underlying these two supranational
sanctions systems that has triggered an unexpected shift in international
law: holding states liable altogether or sanctioning them, as was standard
practice under the Westphalian paradigm, causes unwanted damage to
civilian populations, so it is better to move on to a sanctions system target-
ing private actors engaging in misconduct.
Notes
1. In FATF’s own words (http://www.fatf-gafi.org/about/): “The Financial
Action Task Force (FATF) is an inter-governmental body established in
1989 by the Ministers of its Member jurisdictions. The objectives of the
FATF are to set standards and promote effective implementation of legal,
regulatory, and operational measures for combating money laundering,
terrorism financing, and other related threats to the integrity of the inter-
national financial system. The FATF is therefore a ‘policy-making body’
which works to generate the necessary political will to bring about national
legislative and regulatory reforms in these areas.”
2. In 2017, the Basel Committee on Banking Supervision published the
guidelines entitled Sound management of risks related to money laundering
and financing of terrorism, which are fully in line with FATF recommenda-
tions (https://www.bis.org/bcbs/publ/d405.pdf). The Wolfsberg Group
has the Wolfsberg Anti-Money Laundering Principles for Private Banking
(2012), accompanied by a self-assessment questionnaire published on a
yearly basis to be filled out by the compliance departments of the Group’s
members.
3. Within the field of traditional cooperation law, there is no doubt that coop-
eration between police and judicial authorities raised concerns. However,
one of the advantages of informal networks is that they allow for direct
contact. To further elaborate on the boundaries between police and judi-
cial authorities in the classic cooperation approach, and the implications
thereof see Zurkinden N. 2013, p. 105 et seq.
4. Cf. Zagaris B. (2015, p. 283 et seq) Nevertheless, there is no question that
the United States Securities Exchange Commission (SEC) truly leads the
IOSCO. Undoubtedly, within this field there has been an expansion of the
US securities law framework. When the IOSCO was created in the 1980s,
securities or stock market law had barely developed, even within the
EU. SEC’s Memoranda of Understanding (MOUs) entered into with
many countries played a significant role in the growth of this US model.
The SEC managed to implement, by means of soft power, its so-called
regulatory gospel. The annual meetings held by the SEC were also deci-
sive; regulators worldwide attended, and the SEC offered training pro-
grams based on US law.
5. Cf. Raustiala K (2002, p. 29) stating that, since the law on judicial coop-
eration or judicial assistance is slow, it should not be applied to such a
dynamic field as financial markets. This is why MOUs have superseded
judicial cooperation in this area. As it happened in Switzerland, MOUs did
not suffice, and it became necessary to draw up classic international trea-
ties. This was the case regarding the Convention on Insider Trading in the
early 1990s, where the Council of Europe yielded to the pressure of the
United States.
6. See the Methodology for Assessing Implementation of IOSCO Principles
(https://www.iosco.org/library/pubdocs/pdf/IOSCOPD562.pdf), sec-
tion D. Principles Relating to Cooperation, p. 80 et seq.; along these lines,
see Multi-Jurisdictional Information Sharing for Market Oversight, Final
Report, Report of the Technical Committee of IOSCO, April 2007, (https://
www.iosco.org/library/pubdocs/pdf/IOSCOPD248.pdf).
7. See, for instance, the Checklist for Efficient and Effective Leniency
Programmes. (http://www.internationalcompetitionnetwork.org/uploads/
library/doc1126.pdf), including a set of guidelines for lawmakers to effi-
ciently implement this instrument for investigation.
8. Cf. Defining Hard Core Cartel Conduct, Effective Institutions, Effective
Penalties, 2005, http://www.internationalcompetitionnetwork.org/
uploads/library/doc346.pdf.
9. See INECE’s website: https://inece.org. For the creation of this network,
both the United States Environmental Protection Agency (EPA) and the
Dutch environmental agency were essential. In this case, the approach was
also somewhat based on MOUs. This allowed agencies, along with judges
and prosecutors from more developed countries to cooperate and train
others. See Raustiala K. (footnote 10), p. 43 et seq. for the origins of this
network.
10. See Best practices Paper: The Use of the FATF Recommendations to Combat
Corruption (http://www.fatf-gafi.org/media/fatf/documents/recom-
mendations/BPP-Use-of-FATF-Recs-Co- rruption.pdf).
11. Since 2010, the G20 has the Anti-Corruption Working Group. Its purpose
is to support the remaining transgovernmental networks and the activities
42 A. NIETO MARTÍN
of international organizations. The Anti-Corruption Working Group is

particularly involved in the Stolen Asset Recovery Initiative (StAR) set up
by the United Nations.
12. The Davos Forum, as it is commonly called, is a public-private body bring-
ing together chief executive officers from member companies, interna-
tional organization leaders, selected political leaders from various countries,
and experts of recognized standing worldwide. Its purpose is to examine
key global issues, and its role greatly differs from that of other networks,
also because of the “size” of its meetings or summits, since it mostly
involves political agenda setting. This year’s meeting has insisted on terror-
ism and organized crime.
13. This is the main argument raised by the “realistic” school of thought in
international law. According to “realists,” states are the only actors in inter-
national law. However, not all states have control over international orga-
nizations, but only the most powerful ones. This realistic approach to
international relations also advocates that international organizations are
mere puppets in the hands of certain powerful states. See Álvarez J.E
(2005, p. 29 et seq.). See also a summary of the critical voices about how
international organizations actually operate and how some states are mar-
ginalized in Chimni B (2004).
14. The UNODC was established in 1997 as a result of the merging of the
United Nations Centre for International Crime Prevention and the United
Nations International Drug Control Programme.
15. The most detailed account of the UN intervention in the area of criminal
law according to this traditional approach is that of Clark (1994). The
UN’s criminal justice policy focused on very different aspects from the cur-
rent ones. It dealt with internal issues, regarding the enhancement and
well-functioning of domestic justice systems: treatment of prisoners, codes
of conduct, and rules on the use of firearms for law enforcement officials,
juvenile justice, death sentence and extrajudicial executions, crime preven-
tion and deterrence, victims, international cooperation, and so on. As can
be noted, all of these topics greatly differ from the current ones, which are
now governed by the paradigm of security and transnational crime.
Unquestionably, the meaning and significance of these soft law and stan-
dards at that first stage greatly differs from their current meaning and sig-
nificance. The rulemaking procedure was essentially internal; the external
dimension came—and still does—through entities such as the International
Scientific and Professional Advisory Council (ISPAC) or its five-yearly con-
gresses, whose resolutions were subsequently submitted to the Secretariat.
General Assembly Resolution 46/152, dated 8 December 1991, tried to
reactivate all of the work done by the United Nations since 1945, which
had gone largely unnoticed.
Nevertheless, there had been a major shift by then. Starting in the late
1980s, the UN General Assembly decided to change its approach and
started to use the hard law provisions of international conventions. Over
the following years, the UN drafts its three major conventions: on drugs,
organized crime, and corruption. These provided for criminalization obli-
gations in addition to highly advanced cooperation instruments (see
Joutsen M. 2011, p. 115 et seq.). The stage examined herein qualifies as an
additional twist, and it is defined by the Security Council’s major role.
16. See the work by Gómez Iniesta D. (2019). This evolution has to do with
the new context of international relations after the Cold War. Until then,
the Council’s activity had not been as prominent, due to its underlying
tension within. The disintegration of the Soviet bloc led to an increase in
the Security Council’s activity. It began to impose binding obligations on
states in an unprecedented manner, acting not only as an executive branch,
but sometimes also as the legislature and almost as a judicial branch. See
Tzanakopoulos (2013).
17. Resolution 1373 (2001) on the financing of terrorism, Resolution 2178
(2014), and Resolution 2253 (2015). See Organic Act 2/2015, of 30
March, amending the regulation of crimes of terrorism in the Spanish
Criminal Code. In fact, through Council Common Position, of 26
February 2001, concerning additional restrictive measures against the
Taliban and amending Common Position 96/746/CFSP, the EU urged
Member States to include the criminal law provisions laid down in
Resolution 1371.
18. The sociological approach prevails over the last few years, aimed at account-
ing for the compliance with international law provisions. See Brunnée and
Toope (2002, p. 273 et seq.), Krisch N., (2010, p. 18 et seq.).
19. This is what some authors have aptly described as “mission creep” or
“regime complexes”; see Álvarez J.E, (2011, p. 7). Meyer F., (2012,
p. 811–836), provides a well-structured analysis of the factors accounting
for the effectiveness of international criminal law.
20. From the outset, we have verified that transgovernmental networks and
international institutions do not have a competitive interaction but rather
a complementary relationship. See Álvarez J.E (2005, p. 338; Slaughter
A. M. (2014) and Raustiala K. (2002, p. 83 et seq.), who put forward a
series of possibilities; some of them revolve around conflict and some oth-
ers, along the lines of the main text, are strictly cooperative.
21. Regarding identity theft, the US initiative and impetus were not as evident,
because the EU quickly joined. However, the United States was one of the
few countries that had a specific criminal law provision on this matter. Also,
the issue was closely connected with a classic US problem, that is, the lack
44 A. NIETO MARTÍN
of a national identification system. The true driver in the area of identity

fraud or identity theft was the development of e-commerce.
22. Meyer F., (2012, p. 141). Resolutions definitely have a restraining effect
when they stem from the Security Council. See, for example, Resolution
1373, which called upon all states to ratify as soon as possible the
International Convention for the Suppression of the Financing of Terrorism
of 9 December 1999.
23. In anti-bribery or anti-corruption matters, the UN Convention was pre-
ceded by an initial resolution (A/58/4). However, after that, there have
been many other resolutions, such as Resolution 5/1, enhancing the effec-
tiveness of law enforcement cooperation in the detection of corruption
offences in the framework of the United Nations Convention against
Corruption; Resolution 5/2, strengthening the implementation of the
criminalization provisions of the United Nations Convention against
Corruption, in particular with regard to solicitation; Resolution 5/3, facil-
itating international cooperation in asset recovery; and Resolution 5/4, on
the follow-up to the Marrakech declaration on the prevention of corruption.
24. For instance, to assist states in implementing the United Nations
Convention against Transnational Organized Crime, the General Assembly
commissioned UNODC to draft the Model Law against Trafficking in
Persons.
25. The CJEU has also expressly raised them in the area of mutual recognition,
turning them into the official standards applicable to EU prisons.
26. A particularly interesting and debated case involves the UN moratoriums
regarding death penalty. Their validity as part of international ius cogens or
peremptory international law is being challenged. Through soft law, the
UN could have created a provision at the apex of the international law
pyramid. See Quispe Remón (2016, p. 319 et seq).
27. Regarding terrorism, there are also more specialized bodies: a special com-
mittee to assess the implementation of the Hague Hijacking Convention,
and the United Nations Office for Disarmament Affairs (UNODA), cre-
ated under Resolution 1540 (2004), tasked with assessing the extent to
which states fulfill their obligation not to support non-state actors which,
particularly for terrorist purposes, try to develop weapons of mass destruc-
tion (Proliferation Security Initiative), see Meyer F. (2012, p. 225, 226).
28. The effectiveness of the evaluation is not only relevant because it constrains
state action due to states’ fear to reputational costs. Evaluation reports are
also significant for parliamentary debates, and they are used as leverage
against the government by the opposition parties. The little capacity of
smaller political parties in parliaments turns the evaluators’ objections into
amendments within reform processes, which makes it possible for these
evaluations to become written (positive) statutory law.
29. Council Regulation (EC) No. 2532/98, of 23 November 1998, concern-

ing the powers of the European Central Bank to impose sanctions, OJ L
318, p. 4–7, amended by Council Regulation (EU) 2015/159, of 27
January 2015.
30. Regulation (EC) 1060/2009 of the European Parliament and of the
Council, of 16 September 2009, on credit rating agencies, OJ L 302,
p. 1–31 and Regulation (EU) 596/2014 of the European Parliament and
of the Council of 16 April 2014 on market abuse (market abuse regula-
tion), OJ L 173, p. 1–61.
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CHAPTER 3
Private Ius Puniendi
1 Non-State Actors

Under the traditional international law model, states were the main actors
(and probably the only ones, for that matter) along with, arguably, the
international institutions created thereby. Therefore, one of the defining
features of global law is the emergence of non-state actors, who are
involved in the making, implementation, and evaluation of rules. This
hints at one of global law’s essential aspects: there is no longer a difference
between law makers and law takers (or regulators and parties subject to
regulation) or, if there is, the distinction is now too blurred. In many
areas, state regulation has given way to private regulation, such as, remark-
ably, private rules like the ISO standards (Noortmann and Ryngaert 2010;
Pieth 2012;Peters et al. 2009; Büthe and Mattli 2011).
There are various reasons for the advancement of private actors. The
first one has to do with legitimacy. In order to increase the legitimacy of
their rules and decisions, both classic international organizations and
informal ones (G20, transgovernmental networks) have adopted decision-
making and rulemaking procedures loosely inspired in Jürgen Habermas’
deliberative democracy. The point is to establish an open procedure that
facilitates participation and dialogue with the various stakeholders con-
cerned with the prospective rules. These open procedures have allowed
non-state actors, ranging from multinational corporations to NGOs, to
attain a major role in international treaty making as well as in the adoption

Switzerland AG 2022
https://doi.org/10.1007/978-3-030-84831-6_3
50 A. NIETO MARTÍN
of soft law instruments and in all kinds of standard-setting procedures.

Sometimes there is no such thing as an invitation to participate, but rather
a form of true public-private cooperation embodied by a joint rulemaking
body or simply by a public-private partnership that broadly addresses spe-
cific issues.
The second reason revolves around private actors’ ability to make rules
both with a high degree of technical legitimacy and a global reach.
Standard-setting organizations, like ISO or the International
Electrotechnical Commission (IEC), issue purely private rules and stan-
dards covering most of the products benefitting from global free trade, led
by the WTO. International standards make up for the lack of public sector-
led global harmonization, which is necessary for the free movement of
goods and services. There is not a single international organization with
sufficient authority or technical capacity to undertake this task. Thus, pri-
vate rulemakers have filled the gap.
Thirdly, the significant presence of private actors as regulators and
enforcers is also due to the role attributed thereto by national legislatures
through the so-called self-regulation, which has given rise to many corpo-
rate governance rules: technical rules related to standardization and also
broader rules, such as codes of ethics (Darnaculleta I Gardella 2005). In
fact, state incentives and nudges to self-regulation have given rise to an
entire public rule enforcement framework: compliance programs.
1.1 Multinational Corporations
Enterprises, and particularly multinational corporations, have a prominent
and ever-increasing role as global regulators. They have an undeniable
influence on the making of national, international, and soft law provisions,
as well as on standard setting. They sometimes exert their influence
through unlawful means, such as illegal lobbying or corruption, but they
often act in an openly legal manner. We already went over multinational
corporations’ significant presence in transgovernmental networks or in
various committees or subcommittees triggering the aforesaid mitosis of
international organizations (Muchilinski 2010). This presence increases
the technical or knowledge-based legitimacy of these international instru-
ments. But their presence also results from (i) the improvement of
decision-making procedures and (ii) the aim of hearing the parties con-
cerned by a given regulation. As discussed below, the ties between corpo-
rations and standardization bodies are now even closer.
3 PRIVATE IUS PUNIENDI 51
At this point, we will focus on companies’ regulatory compliance sys-

tems and their connections with the so-called self-regulation as a global
regulatory mechanism. The analysis of World Bank blacklisting evidenced
the role of multinational corporations in global law. The sanctions or pen-
alties imposed on companies have become a strong instrument for indirect
regulation by states. The purpose of sanctioning entities is to push them
to establish an effective self-regulation system aimed at preventing risks or
criminal offences. Prior to imposing a penalty on a company, most sanc-
tions regimes (or, more broadly, legal systems) take into account whether
it has made any efforts in terms of internal control, compliance, preven-
tion, and detection. Accordingly, compliance programs, and generally all
self-regulation schemes, have become a remote regulation system for
states. John Coffee aptly illustrated this change of strategy by noting how
states no longer act like sumo wrestlers, who simply fight their opponents;
they now have become accomplished judokas, who use their opponents’
strength to defeat them. Multinational corporations’ compliance pro-
grams to prevent corruption, antitrust violations, or money laundering are
typical regulatory mechanisms in global law.
States have performed quite a judo ippon (pun intended) through this
regulatory mechanism over the last few years. In a nutshell: national or
state criminal/punitive law has had a threefold dimension. First, it has
required companies to regulate themselves (it has enforced self-regulation)
in order for them to control specific risks attached to production, supply,
or manufacturing processes. Risks can relate to very different fields, rang-
ing from environmental matters, privacy and data protection, labor issues,
food safety, consumers (particularly financial product customers), and so
on. There is always a similar methodology: public authorities enact a set of
guidelines (metaregulation) to be implemented by companies. Usually,
companies are required to carry out risk assessments, to allocate responsi-
bilities within the organization or to establish company policy.1
The second dimension of state punitive law, a little more startling yet
even more aimed at turning corporations into watchdogs of public inter-
ests, entails using self-regulation not only to avert the risk, but also to
prevent and find third-party wrongdoing. The point is to turn companies
into “gatekeepers,” in order to prevent money laundering, market abuse,
or tax fraud by third parties from outside of the company who will eventu-
ally take advantage of these corporations.2
The third dimension, that is, a final or supplementary clause, involves
criminalization or the establishment of criminal liability (or, more broadly,
52 A. NIETO MARTÍN
the definition of liability for wrongful acts). The purpose of this third
dimension of punitive law is to prevent, detect, and punish criminal
offences committed by senior executives but also by those reporting to
them (subordinates) that benefit from such wrongdoing taking place in
the discharge of their duties. Most legal orders embracing this framework
include the basic features of this distinct self-regulation mechanism, either
in the very criminal provision defining criminal behaviors (see Article
31(bis)(5) of the Spanish Criminal Code, Código Penal or SCC) or in
guidelines or recommendations (soft law provisions) issued by public
authorities.
Originally, the scope of self-regulation obligations imposed on compa-
nies by states was mostly national and it largely targeted unlawful behav-
iors within corporations or attributable to company employees. Lately, the
scope of self-regulation requirements is no longer limited to national
boundaries, and these requirements have become increasingly global and
far reaching. Therefore, the so-called due diligence requirements or obli-
gations are now essential for control and enforcement. In this regard, the
OECD sets the tone through the Due Diligence Guidance for Responsible
Business Conduct, but there are many other guidelines and recommenda-
tions stemming from business partnerships or joint ventures. The starting
point for due diligence requirements was the fight against international
corruption. The specific anti-corruption or anti-bribery mechanisms are
internal procedures that require companies to ensure that any external
advisors or consultants, as well as their business partners or joint venturers,
act in a professional manner. Put simply, anti-bribery due diligence requires
companies to verify that the relevant consulting firm was not really an
entity used by corrupt public officials to receive bribes, or that the entity
with whom a company created a joint venture was not really a front set up
by state officials to benefit from the public works plan approved thereby.3
This starting point led to a further extension of due diligence proce-
dures, triggered by another distinctly global phenomenon: the globaliza-
tion of the supply chain. Tasking the large corporation leading or heading
the supply chain with the duty to control it is a global regulation strategy
on the rise. For instance, this strategy is being implemented in the food
chain to prevent food fraud (Nieto Martin 2019), but it is mostly devel-
oped within the field of human rights. The OECD Due Diligence Guidance
falls within this context, where the OECD specifies its guiding principles
for multinational enterprises connected with the United Nations Guiding
Principles on Business and Human Rights. Subject to the approach taken
by these instruments, multinational corporations conduct due diligence

procedures to make sure that their products have no ties whatsoever with
child labor, forced labor related to human trafficking, and so on (Nieto
Martin 2021).
In all of these sectors, the OECD has disclosed several specific guide-
lines laying down the applicable due diligence obligations.4 Certification
and verification systems play a major role within this indirect and remote
state supervision framework. For example, regarding suppliers of suppli-
ers, due diligence obligations are enforced by requiring the first supplier
that the rest be duly certified.
It is a misconception that all this global regulation strategy is to be
implemented exclusively through soft law provisions. Slowly but surely,
many legal systems have established sanctions and indirect enforcement
mechanisms in order to hold liable any entity that fails to comply with
these due diligence requirements (Sabia 2021; Krajewski and Saage Maaß
2018). For instance, under the non-financial reporting Directive
(2014/95/EU), the EU requires member state multinational enterprises
to disclose their due diligence measures in their annual financial state-
ments. In the UK and California, companies must report the control
mechanisms they put in place in their supply chains to prevent child labor
and modern-day slavery. In France, the Code of Commerce was amended
through the Corporate Compliance Act, and companies are now required
to put in place due diligence procedures. Failure to provide for these due
diligence plans can give rise to civil liability. It is also worth noting the EU
regulation imposing due diligence obligations on Union importers of cer-
tain minerals from conflict-affected areas. This regulation aptly exemplifies
the interactions between soft law and hard law provisions. Indeed, the EU
embraces the OECD Guide on this matter as the main due diligence
standard.5
As shown above, due diligence procedures are central for global regula-
tion. They are instruments that allow states to monitor third-party behav-
ior outside their jurisdiction relying on multinational corporations’
enforcement power. Graphically stated, due diligence obligations turn
multinational enterprises into remote labor inspectors tasked with ensur-
ing, inter alia, that there be no child or forced labor throughout their
supply chain. By way of example, companies are required to conduct
unannounced on-site inspections of the premises of their shoe, mineral, or
agricultural product suppliers. Delocalization or offshoring and the risks
attached thereto, inherent to globalization (particularly regarding human
54 A. NIETO MARTÍN
rights in this case), are tackled through a manifold response involving soft
law, corporate self-regulation, and sanctions or penalties for transnational
companies. If multinational corporations manage to successfully imple-
ment these compliance instruments vis-à-vis their suppliers, there is no
doubt that these regulatory mechanisms will be more effective than
domestic legislation, particularly because state enforcement mechanisms
are severely weakened; for instance, they lack appropriate inspection and
monitoring systems.
Aside from the ability of multinational enterprises to regulate the con-
duct of third parties, keep in mind that companies’ own corporate compli-
ance systems are major global regulation mechanisms. Codes of ethics are
true global rules. Code of ethics violations are investigated and punished
regardless of where they occurred and even if the behaviors are not crimi-
nalized or prosecuted in the place of the infringement. Codes of ethics or
anti-bribery policies issued by multinational corporations can have many
more addressees than state (national) provisions. Also, if the relevant
transnational institution takes it seriously, the implementation, enforce-
ment, and sanctions systems can be equally if not more effective than
national frameworks. Keep in mind the great potential of companies’ dis-
ciplinary procedures and employee codes of conduct as a global law instru-
ment. In fact, compliance programs are often required to provide for
disciplinary penalties in case of breaches of company policy. Thus, codes of
ethics become highly effective, since the company is required to investi-
gate and punish any infringements thereof, as well as to establish internal
prevention mechanisms such as complaints procedures. In this chain of
remote legal protection, domestic courts will make sure that corporations
actually investigate and punish any breaches when assessing the effective-
ness of compliance programs within the framework, inter alia, of criminal
liability of legal entities.
1.2 Collective Actions
Above we discussed transgovernmental networks stemming from rela-
tional sovereignty, along with the various bodies that arise from the mito-
sis of international organizations. In order to get the full picture of the
somewhat structured institutions that make up the “global governance
landscape,” we need to examine collective actions (Pieth 2012). These
bodies have the exact same role as the previously described institutions:
they set standards addressed to national legislatures or companies. Also,
among other activities, they (i) monitor compliance with these standards
and other rules; (ii) draft working documents and reports, and (iii) pro-
vide technical assistance. Their members are also similar, that is, country
representatives, members of corporate organizations, and NGO represen-
tatives. However, there is a difference between collective actions and other
organizations: companies have the leading role.
The World Bank (WB) has launched a salient network of collective
actions and anti-corruption work, and it published a “Guide for Business”
entitled Fighting Corruption Through Collective Action. According to the
WB, collective action is “a collaborative and sustained process of coopera-
tion between stakeholders. It increases the impact and credibility of indi-
vidual action, brings vulnerable individual players into an alliance of
like-minded organizations and levels the playing field between competi-
tors.” Collective actions can aim at different goals, the least ambitious
being the exchange of information on a shared or common issue, and the
farthest reaching being standard-setting for self-regulation. Regardless of
how they are actually embodied in each specific case, collective actions, for
one, allow to neutralize the free-rider problem. In a highly corrupt indus-
try, it is unlikely that a company will join the “club of the virtuous” acting
without regard to the other companies. The risk of losing market share or
being excluded from public procurement procedures will be too high; in
spite of the company’s good intentions, it will continue to engage in
wrongdoing. Business associations, groups, and joint ventures undercut
free riders and can gain a competitive edge from other companies’ behav-
ior. Furthermore, collective action also benefits weaker competitors. In
corruption cases, for example, sometimes only large enterprises are in the
position to join the “club of the virtuous” and exit certain markets. These
markets would become a playing field exclusively for the least powerful
companies.
In order for collective action to be successful, B20 (which stands for
“Business 20,” an offshoot of the G20 representing G20’s business voice
made up of the 20 world leading companies) has prepared a set of guide-
lines and recommendations: public players must get involved, as well as
each sector’s leading companies, and a sound monitoring system must be
implemented. Although collective action is a bottom-up process, public
bodies’ presence is essential to render collective actions more serious and
meaningful. In fact, collective action must be construed as a form of
public-private cooperation. Collective actions do not only enable corpo-
rate self-regulation for anti-corruption purposes, but they also give rise to
56 A. NIETO MARTÍN
self-enforcement or self-monitoring frameworks, privately managed by the

stakeholders, that lessen the regulatory burden on state authorities.
Ultimately, states’ ability to effectively nudge companies to engage in col-
lective action provides a new example of relational sovereignty, of increased
power and problem-solving by engaging several players. The purpose of
collective action can be to involve both leading companies in each sector
and developing countries where corruption occurs. Accordingly, collective
action can be used to put the pressure on certain countries to implement
best practice standards in a certain field.
Since finding and listing all collective action initiatives can be a daunt-
ing challenge, I will only discuss anti-corruption collective actions.6 The
Extractive Industries Transparency Initiative (EITI) is a good example of
collective action. EITI, whose International Secretariat is based in Oslo, is
a public-private partnership bringing together companies, governments,
and NGOs. It was established in 2001. Under the initiative publish what
you pay, oil and mining corporations started to disclose their payments
into the budgets of countries like Angola, which triggered the creation of
EITI. Based on this idea, further outlined and pushed by the UK govern-
ment, there was an initiative to set up a transparency network between oil
and mining companies and governments (at first, only Nigeria, Azerbaijan,
and Ghana, but Peru, the Republic of Congo and many others joined
later). Companies publish the overall payments they make in every coun-
try that joins the initiative—taxes and any other payments—whereas gov-
ernments publish the value of the natural resources exploited in return.
Each country’s reports are a significant control or oversight mechanism
over governments and corporations. The reports are reliable because they
are subject to the EITI Rules, a set of standards issued by the EITI Board.
Also, the implementation of the EITI Rules is supervised on a country-by-
country basis by a board made up of NGOs, companies, and governments
(Moberg and Rich 2012).
The Partnering Against Corruption Initiative (PACI) is another leading
anti-corruption collective action initiative. In contrast with EITI, the role
of companies is a lot more prominent than that of states. However, PACI’s
governance includes OECD representatives and NGOs like Transparency
International (Wong and Fernandes 2012). The origins of PACI can be
traced back to a paramount example of globalization summit: the Davos
World Economic Forum of 2004. The purpose of PACI is to set common
standards to implement a global anti-corruption agenda in the form of
compliance programs, requiring companies to submit a bi-annual
compliance report. In addition to this standard-setting activity, PACI

seeks collective actions pursuing more specific aims in certain locations;
governments and major companies must be involved in these initiatives.
The pharmaceutical industry has traditionally raised corruption con-
cerns, more so than other sectors. This is why the collective action created
by the EU, launched by the European Federation of Pharmaceutical
Industries and Associations (EFPIA), is one of the most consolidated col-
lective action initiatives. Through its direct membership of 36 national
associations, covering 1900 pharmaceutical companies including the lead-
ing enterprises, EFPIA’s collective action translates into several activities
and initiatives at a European level. Remarkably, EFPIA issued its Disclosure
Code, requiring member companies to disclose the names of healthcare
professionals and organizations that have received payments or other
transfers of value from them and the total amounts paid. These amounts
should be broken down by type of activity (among others, a consultancy
fee for speaking, payment for travel, or registration fees to attend a medical
education congress). Above all, EFPIA relies on national collective action,
based on a collective code of conduct: the EFPIA Code on the promotion of
prescription-only medicines to, and interaction with, healthcare professionals
(the EFPIA HCP Code). This model code, applicable to the whole
European pharmaceutical industry, sets minimum standards to be further
developed by national codes of conduct.
Aside from providing a common standard, the defining feature of this
collective action initiative is that it has national enforcement bodies in each
country (control mechanisms). On top of that, the EFPIA HCP Code
provides for up to EUR 360,000 fines imposed by a self-enforcement Jury
in the event of a breach. This common self-regulation framework allows
member companies to file complaints against other companies for violat-
ing the Code. Then, there is room for a possible mediation agreement,
managed by the Ethics Committee, or the Jury may impose a sanction on
the so-called offending company. The EFPIA HCP Code has a short gen-
eral law part, laying down due process rules for the imposition of sanc-
tions. Another distinct feature of this true private punitive law mechanism,
shaped by a collective action initiative, is that it prevails over any adminis-
trative complaints. The companies involved in this collective action initia-
tive undertake to resort to these self-regulation remedies prior to initiating
judicial proceedings. Any amounts paid as fines will be used for advertising
campaigns aimed at encouraging the rational use of medicinal products.
58 A. NIETO MARTÍN
1.3 NGOs
A registered NGO could be found alongside a state in the 1972 UN
Conference on the Human Environment in Stockholm (the Stockholm
Conference). Although their role is far from insignificant, it would be an
overstatement to say that NGOs play a similar role to that of multinational
corporations when it comes to global rulemaking (Lehmkuhl 2012). As
pointed out above, NGOs can be involved in the various life stages of an
international rule or provision. They can most certainly have an impact on
legislative agenda setting, as in the nineteenth century regarding white
slave trade or trafficking in women (Capus 2009), or even before that,
when NGOs moved for the prohibition of slavery or the Red Cross initia-
tives in the international humanitarian law agenda (Arroyo 2009). Keep in
mind that influence is not always about agenda setting. Indeed, the oppo-
sition of NGOs to the failed 1988 Multilateral Agreement on Investment
(MAI) led to the project’s withdrawal (Peters et al. 2009).
The role of NGOs can also cover the drafting stage of provisions. NGOs
are often involved in international organization committees, subsequently
reappearing for the assessment of the rules. The informal or non-formalistic
nature of lawmaking procedures within international institutions, as well
as the steady implementation of deliberative democracy approaches, help
NGOs in this regard (Wheatley 2009). The lack of legitimacy under the
traditional representative democracy model has encouraged some interna-
tional organizations to come up with certain participation and consulta-
tion mechanisms, allowing the involvement of NGOs and parties
concerned or affected by the relevant regulation.
NGOs are usually present in certain transgovernmental networks for
standard-setting procedures. Nevertheless, some international institutions
also act as autonomous standard setters. In the field of corruption and
bribery, associations like Transparency International and their perception
of corruption indexes are already famous. Their rankings follow a “name
and shame” strategy, “pointing fingers” at countries, which has an unques-
tionable impact on states’ relational sovereignty, since they suffer severe
reputational damage.
A very distinct type of NGOs regarding criminal justice policy are sci-
entific societies, such as the International Association of Penal Law (AIDP,
L’Association Internationale de Droit Pénal in French), the International
Society of Social Defence and Humane Criminal Policy (ISSD), the
International Penal and Penitentiary Foundation (IPPF), or the
International Society for Criminology (ISC). These institutions interact

and relate to the UN through the International Scientific and Professional
Advisory Council (ISPAC). The role of ISPAC consists in systematizing or
standardizing the relationships with civil society as well as in enhancing
research and policymaking (Clark 1994).
1.4 Standardization Bodies and Other Non-State Regulators

As indicated before, the emergence of non-state actors in global law shows
that there is no longer a clear difference between law makers and law tak-
ers and that private regulation is finding its way through the traditional
state-based regulation. This claim holds particularly true for private stan-
dardization bodies, that is, one of the greatest global lawmakers. Roughly
85% of the technical standards in place come from ISO or the International
Electrotechnical Commission (IEC), and one-third of the products out in
the global market are affected by technical standards (Büthe and
Mattli 2011).
The reasons for such rise of standardization are easily understandable.
The international trade of products and services triggered by economic
globalization calls for significant harmonization. But national govern-
ments are ill-equipped to provide this harmonization, and they are not
willing to delegate this task to international institutions. On top of that,
the most stringent national regulations are frowned upon by the interna-
tional trade police, the WTO, on the basis that there are underlying pro-
tectionist interests. This power vacuum left by states has opened the way
for private actors, namely standardization bodies, whose technical stan-
dards—whether on quality or production processes—have become the
global law governing many industries. This private regulation is mostly
founded on technical or knowledge-based legitimacy, which provides it
with an aura of neutrality that apparently distances this form of rulemaking
from political decisions. The degree of legitimacy need not be too high,
since companies voluntarily adhere to these rules.
The foregoing overview is not the only possible narrative about this
type of regulation. Food law, where standardization has an overwhelming
presence, evidences that many of these provisions and standards are not
based on technical criteria. Rather, they are subject to the “might is right”
rule within the market (Nieto Martin 2019; Van der Meulen 2016).
Standardization bodies take these regulations from the leading companies
in the industry, and that is largely why the standards are effective
60 A. NIETO MARTÍN
(regarding environmental matters Schaper 2009). It is chimerical to

believe that standardization bodies like ISO have experts for each and
every industry. The experts come from large corporations, who set the
quality standards that end up being applicable. Standards do not seek a
compromise between a wide range of technical opinions. Conversely, they
impose specific criteria and points of view. Therefore, standard-based reg-
ulation is far from neutral, and it creates winners and losers. The idea that
companies voluntarily adhere or agree to be bound by these rules does not
hold true for every case. Failure to implement a given standard can give
rise to considerable costs, since “non-adhered products” may not be freely
traded worldwide. Accepting these standards entails that the quality of the
relevant products will be taken for granted or asserted. Otherwise, compa-
nies must prove that their products are good. Where standards reflect the
leading companies’ will, as is the case in the food industry, suppliers have
no choice but to adhere to them. As a result, they may have unbearable
costs, which are subsequently passed on to weaker links of the chain in the
form of abusive working conditions.
Private standards within the global regulatory network must be con-
nected with those stemming from transgovernmental networks, with soft
law provisions arising from international organizations, and also with cor-
porate self-regulation or state (national) legislation. There is usually a
noticeable lex specialis relationship of some sort, which could also be des-
ignated as a complementary relationship (Büthe and Mattli 2011, p. 22).
This relationship is more clearly visible when standardization rules focus
on setting out procedures aimed at the fulfillment of legal obligations, like
regulatory compliance and anti-corruption standards in the field of crimi-
nal law. Both standards mostly intend to lay down a guiding or steering
framework, inter alia, by allocating responsibilities and duties within a
given organization, or by providing for document management systems.
The substance of these standards (due diligence obligations, monitoring
staff recruitment, financial oversight) summarizes the regulatory compli-
ance background stemming from the OECD, collective action, or national
legislatures. The ISO Guideline for Compliance Management Systems
(ISO 19600) is in line with regulatory compliance legislation in the United
States, Chile, Italy, or Spain, and even more so each country’s adaptations
of ISO 19600, like UNE 166000. The same applies to environmental or
worker protection standards, which are also consistent with the statutory
(legal) obligations.
These complementary relationships of standards and statutory law

show that these rules are not totally isolated from traditional legislation or
the law as a whole. There are multiple ways for them to enter national legal
orders and gain legal prominence. Many food standards turn into contrac-
tual obligations for the suppliers of large supermarket chains. In this vein,
ISO 37001 on anti-bribery is supposed to play a decisive role when it
comes to selecting service providers, in order to fulfill due diligence
obligations.
We find a more clear relationship between standardization rules and
written (positive) statutory law when a piece of legislation or a public
authority qualifies standards as binding provisions. The International
Financial Reporting Standards (IFRS) are the most famous example. They
were issued by private entities, the IFRS Foundation, and the International
Accounting Standards Board (IASB), but now the SEC and many other
securities market authorities expressly require compliance with these finan-
cial reporting standards regarding the preparation of financial statements.
These accounting rules arising from private actors have allowed for the
standardization and harmonization of financial reporting in globalized
financial markets.
The ties with the legal system and criminal law in particular can also be
established through the case law, that is, when judicial authorities rely on
certification standards to provide the standard of care (or, in other words,
to define the duty of care) applicable in negligent crimes. Accordingly,
compliance with the standards—provided that valid certification confirms
or ratifies such compliance—could qualify as early or anticipated expert
evidence (Nieto Martin 2019; Valeria Torre 2013, 2014).
The intersections between standards and written (positive) statutory
law, along with the clear evidence that we are witnessing the rise of private
regulation with public effects, triggers the necessary debate on whether
these rules are legitimate, particularly considering that they sometimes
result from the “might is right” rule, as stated above. We know very little
about the drafting and approval of standards, about their degree of trans-
parency and about how they ensure (if they do at all) that all interests at
stake are represented in the rulemaking procedure.
62 A. NIETO MARTÍN
2 Global Ius Puniendi of Sports Federations

and Associations
Sports federations and associations and their high profile in sports regula-
tion and governance, one of the most significant cultural and economic
activities of globalization, aptly illustrates the extent to which states and
traditional international institutions leave their activity in the hands of pri-
vate actors (De Vicente Martinez 2019). Sports federations and associa-
tions, like the International Olympic Committee (IOC) or FIFA, already
had a global presence and structure (like multinational corporations), and
that is a great advantage. They are private organizations, privately funded
and subject to private law, often incorporated or established under Swiss
law with affiliated member associations in many countries; these affiliates
are entities with separate legal personality subject to the relevant countries’
domestic law. National sports associations are made up of regional organi-
zations, and they govern almost every sports competition held in the
country. All sports competitions subject to a governing body (the so-called
federated sports) must abide by the rules globally issued for that sport.
These global rules are applied and enforced worldwide thanks to this pyra-
mid structure.
In order to ensure the applicability of sports rules, all sports organiza-
tions have disciplinary codes in place for teams and athletes. This set of
disciplinary law provisions is extremely close to criminal law. The aforesaid
disciplinary codes thoroughly regulate general matters (perpetration and
participation, errors in fact or in law, concurrent offences, criminal sanc-
tions, etc.), and they do so generally in line with (i) the principle of speci-
ficity, (ii) due process requirements, and (iii) the rule of law.
A salient feature of this global ius puniendi of sports federations and
associations is that they are empowered to enforce anti-doping rules. The
origins of these regulations aptly illustrate the balance of power as well as
the regulatory network existing in this field and its coercive power. The
grundnorm in this domain is the World Anti-Doping Code applicable to
all “federated” athletes. The court of last resort in the “judiciary” of this
disciplinary law framework is the Court of Arbitration for Sport (CAS,
Tribunal Arbitral du Sport or TAS), headquartered in Switzerland. The
CAS is an international body subject to private law, and it amounts to the
global dispute settlement authority for all sports federations and associa-
tions. Shockingly, public international law, by means of the UNESCO
International Convention against Doping in Sport (the Anti-Doping
Convention), falls within this private self-regulation framework. One of

the Anti-Doping Convention’s main purposes is to ensure the effective
enforcement of the World Anti-Doping Code in every country. According
to the convention, States Parties must remove any obstacles in their legal
systems that could hinder the enforcement of sanctions or penalties for
anti-doping rule violations imposed by the private “judicial” bodies. As if
this coercive mechanism was not enough, federations can also prevent
states violating the World Anti-Doping Code from hosting international
competitions, as they can prevent their athletes from participating in com-
petitions held abroad.
Probably, sports disciplinary law best exemplifies global punitive law
and the exercise of non-territorial sovereign power. It is also worth exam-
ining the relationship between the law of states or international organiza-
tions and private ius puniendi. On the one hand, as stated above,
international law has handed over sports regulation to private regulators
to the point of creating an international convention to allow for the proper
functioning of sports regulation in anti-doping matters. This global design
is unrelated to the stance taken by states. Countries like Spain consider
that sports must be publicly managed, although public authorities dele-
gate powers (including sanctioning powers) to sports federations and
associations. The opposite approach is based on private management,
where sport is construed as an activity stemming from society, and thus to
be privately managed and regulated.
The relationships between this ius puniendi and each country’s national
legal system to which this punitive law applies remains unclear. Even the
applicability of fundamental rights is somewhat fuzzy. This is aptly exem-
plified by UEFA’s decision to fine FC Barcelona for displaying pro-
independence estelada flags during a match. UEFA’s legal basis for this
decision was Article 16(2)(e) of the UEFA Disciplinary Regulations. No
judicial authority ever assessed if this fine was compatible with freedom of
expression, although this judicial assessment was performed when FC
Barcelona fans were accused of a crime of slander against the King and the
country for “booing the national anthem.” One of the most controversial
aspects is whether sports law justice can prevent national courts from rul-
ing on any imposed sanctions.
64 A. NIETO MARTÍN
Notes
1. See a comprehensive study on how this self-regulation becomes embedded
in the criminalization of conducts regarding criminal labor law in Torre V.,
La “privatizzazione” delle fonti di diritto penal. Un’analisi comparata dei
modelli di responsabilità penale nell’eserzicio dell’attività di impresa, Bononia
University Press, 2013. By the same author and regarding food law, see
Produttori di alimenti o produtorie di norme? Gli standard di sicurezza tra
fonti pubblicistiche e fonti privatistiche e il loro valore tipizzante nel fatto cul-
poso, in Foffani L./Doval A./Castronuovo D., La sicurezza agroalimentare
nella prospettive europea, Giuffré Editore, 2014, p. 507 et seq.
2. On this approach and on the notion of “gatekeeper,” see Coffee Jr., The
Professions and Corporate Governance, Oxford University Press, 2006.
However, the text uses the term “gatekeeper” with a broader meaning,
since, according to the author, gatekeepers are only those professionals
(such as auditors) who bear reputational costs if they fail to appropriately
perform their oversight duties. This work uses “gatekeeper” in a broader
sense. We use the term every time lawmakers require companies to provide
for preventive measures in order to detect and prevent wrongdoing by third
parties.
3. The most developed due diligence models are usually divided into three dif-
ferent stages. The first phase is conceived to test the risks, that is, to assess
the honorability and creditworthiness of the person or entity tasked with
representing the company before foreign authorities. The second stage,
depending on the risk, entails the adoption of several contract clauses to
limit such risk; these clauses can provide how to make the payments, or they
may require the establishment of complaints procedures and training pro-
grams so the employees know that they must file a complaint in case of any
misconduct. The third post-contractual stage allows the company to moni-
tor compliance with any internal checks or other contractual obligations. On
due diligence procedures, see Giavazzi S., The ABC Program: An Anti-
Bribery Compliance Program Recommended to Corporations Operating in
Multinational Environment, in Manacorda S./Centonze F./Forti G.,
Preventing Corporate Corruption: The Anti-Bribery Compliance Model,
Springer, 2014.
4. See, regarding the textile industry, OECD Forum on Due Diligence in the
Garment and Footwear Sector; as for mineral extraction in conflict-affected
areas, see OECD Due Diligence Guidance for Responsible Supply Chains of
Minerals from Conflict-Affected and High-Risk Areas; also within the min-
eral field, but concerning child labor, see Child labor risks in the minerals
supply chain; also, see OECD-FAO Guidance for Responsible Agricultural
Supply Chains; regarding extractive industries, see OECD Due Diligence

Guidance for Meaningful Stakeholder Engagement in the Extractive Sector;
and, finally, concerning responsible investments, see Responsible business con-
duct in the financial sector.
5. Regulation (EU) 2017/821 of the European Parliament and of the Council,
of 17 May 2017, laying down supply chain due diligence obligations for
Union importers of tin, tantalum, and tungsten, their ores, and gold origi-
nating from conflict-affected and high-risk areas. On all of these initiatives,
see Guamán Hernández C./Moreno González G., Empresas transnacionales
y Derechos Humanos, Bomarzo, 2018.
6. Although corruption is the paramount target of collective actions, the
Wolfsberg Group was one of the first initiatives dealing with banking regula-
tion and particularly money laundering and economic crimes. It is made up
of 30 global banks (Barclays, Santander, Bank of America, HSBC, DB, etc.),
and its main purpose is to publish standards, like the Wolfsberg Anti-Money
Laundering (AML) Principles for Private Banking, that are periodically
updated. In contrast with PACI, the implementation of the various stan-
dards by financial entities is much more flexible and depends on the size of
the companies and the risk they want to assume.
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Compliance Model, Springer, 2014.
Guamán Hernández C./Moreno González G., Empresas transnacionales y Derechos
Humanos, Bomarzo, 2018.
Krajewski/Saage-Maaß (Hrsg), Die Durchsetzung menschenrechtlicher
Sorgfaltspflichten von Unternehmen, Nomos, 2018.
Lehmkuhl, Non-State actors in regulation, in Pieth M., (ed), Collective Action:
Innovative Strategies to Prevent Corruption, Dike, 2012.
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from the Extractive Industries Transparency Initiative (EITI), in Pieth M., (ed),
Collective Action: Innovative Strategies to Prevent Corruption, Dike, 2012.
Muchlinski P., Multinational Enterprises as Actors in International Law: Creating
Soft Law Obligations and Hard Law Rights, in Noortmann M. and Ryngaert
C., Non-State Actor Dynamics in International Law, From Law Takers to Law
Makers, Ashgate, 2010.
Nieto Martín A., Salud alimentaria, fraudes y Derecho global, in Nieto Martin A
and Garcia Moreno B., Ius puniendi y Global Law. Hacia un Derecho penal sin
Estado. Tirant lo Blanch. 2019.
Nieto Marti A., Towards an European Economic Criminal Law of Human Rights,
European Criminal Law Review, Vol 11, 2021, 1.
Noortmann M./Ryngaert C., Non-State Actor Dynamics in International Law,
From Law Takers to Law Makers, Ashgate, 2010.
Peters A., Koechlin L., Föster T. and Zinkernagle G., Non State Actors as Standard
Setters, Cambridge, 2009
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Dike, 2012.
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Violations. Regulatory Trends and New Punitive Approaches Across Europe,
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Cambridge, 2009.
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modelli di responsabilità penale nell’eserzicio dell’attività di impresa, Bononia
University Press, 2013.
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tra fonti pubblicistiche e fonti privatistiche e il loro valore tipizzante nel fatto
culposo, in Foffani L./Doval A./Castronuovo D., La sicurezza agroalimentare
nella prospettive europea, Giuffré Editore, 2014.
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Obligations: the European Mineral Conflicts Regulation as an Example,
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as Standard Setters, Cambridge, 2009.
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Pieth M., (ed), Collective Action: Innovative Strategies to Prevent Corruption,
Dike, 2012.
CHAPTER 4
Territories, Sovereigns, and Ius Puniendi
1 The Spatial Application of Criminal Law

and Judicial Cooperation
1.1 The Iron Triangle

The influence on judicial and police cooperation of the notions of rela-
tional sovereignty and the new concept of security discussed in Chap. 1 is
remarkable. From the second half of the seventeenth century, criminal
justice has been based on such a tight bond between ius puniendi-
“sovereignty”-territory that we sometimes perceive it as an ahistorical
event. Sovereign states exercise their right to punish within a given spatial
extension, that is, the territory. This “iron triangle,” in the words of Pedro
Caeiro (2010), stems from the Peace of Westphalia ending the Thirty
Years’ War. As discussed before, Westphalian sovereignty means that states
have an absolute right to exercise their sovereignty and power within their
territory, as well as the right to be left alone, to exclude, to be free from
any external meddling or interference.
For criminal law, non-interference entailed the implementation of the
principle of territoriality as the main standard to delimit the states’ right to
punish or ius puniendi. The territory is the main criterion to delineate
domestic jurisdictions. Extending jurisdiction beyond national borders
can qualify as meddling in the internal affairs of another country, and it
must be duly justified. The fathers of enlightened criminal justice, Beccaria

Switzerland AG 2022
https://doi.org/10.1007/978-3-030-84831-6_4
70 A. NIETO MARTÍN
and Montesquieu, and their school of thought, underscored the impor-

tance of territoriality as an inherent element of ius puniendi. On the one
hand, territoriality is perfectly in line with an understanding of criminal
law based on the social contract entered into between the members of a
community within a given territory. On the other, territoriality is fully
consistent with general deterrence and legal certainty. Beccaria could
hardly imagine the idea of universal justice, that is, a criminal justice sys-
tem disconnected from territorial boundaries (Caeiro 2010, p. 294 et seq).
The Permanent Court of International Justice (PCIJ, currently the
International Court of Justice or ICJ) confirmed in the famous Lotus case
that the territory is the constituent element in the exercise of ius puniendi
by states. The Court’s doctrine can be summarized as follows: “Now the
first and foremost restriction imposed by international law upon a State is
that—in the absence of a permissive rule to the contrary—it may not exer-
cise its power in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised by a State outside
its borders except by virtue of a permissive rule derived from international
custom or from a convention.”
Although having regard to this restriction, under the Westphalian para-
digm of ius puniendi, each state has sovereignty to establish its scope of
power. This brings along certain distrust to the rules on conflicts of juris-
diction, but also to the application of the ne bis in idem principle (double
jeopardy) to the penalties imposed by different states. Karl Binding was
bold in this regard: “no tenet of justice can prevent that various states
decide to join their charges.”(Binding….) The various penalties imposed
by diverse states are an expression of their sovereignty, and the exercise of
this sovereign power prevails over a hypothetical common or universal
right not to be tried or punished twice or more for the same offence by
different sovereign authorities. Even within the European Union, the
scholarly critics of the ne bis in idem principle argue that it entails undue
limitations on sovereignty (Zimmermann 2013, p. 268 et seq).
The Westphalian judicial cooperation model is construed as legal or
judicial assistance (Rechtshilfe) provided to another state who seeks to
protect purely national legal interest through criminal proceedings. The
law on judicial cooperation, which is the other side of the coin to the pro-
visions on the scope of the spatial application of criminal law, also relies on
the Westphalian paradigm of ius puniendi. The need to conclude judicial
cooperation agreements rests on the need to respect state sovereignty.
(Vogel, in Vogel and Grotz 2004, p. 13 et zeq). Even under those
4 TERRITORIES, SOVEREIGNS, AND IUS PUNIENDI 71
agreements, the principle of non-interference (in other states’ internal

affairs) precludes any act of enforcement in another country’s territory
without its consent. In fact, international law even precludes states from
obtaining other states’ forced or reluctant consent under external pressure
contrary to international law (Joutsen 2005, p. 258). The principle locus
regit actum, which has been indisputable, is also consistent with the
sovereignty-territory axis. Under the Westphalian judicial cooperation
model, it makes no sense that a state require another that an act of coop-
eration on a foreign state’s territory be subject to the rules of the request-
ing state.
The rule of non-inquiry, which has long been one of the cornerstones
of cooperation, also embodies the idea of utmost respect for other coun-
try’s sovereign legal systems. When providing assistance, states did not
question the other state’s legal order or its judiciary (Vogel, in Vogel and
Grotz 2004, p. 23). Any potential lack of safeguards, fairness or due pro-
cess, the state of prisons, or even the risk of torture were matters that
could only be addressed at a political stage of cooperation, yet not ques-
tioned by national judges when applying their domestic law. Recently, the
rule of non-inquiry has been steadily disregarded as a result of the influ-
ence of the progressive Grotian tradition. The emergence of international
human rights law, allowing international law to limit states’ all-embracing
power over their citizens within their territory, also led to the Soering doc-
trine and to the reinterpretation of “public order” based on fundamental
rights. Ever since the Soering case, states can refuse to cooperate with each
other on the grounds that such cooperation may facilitate human rights
violations by the requesting state (Nieto Martin 2010; Nieto Martin and
Beltran 2012).
This turn in international law also explains the cutbacks in one of the
Westphalian paradigm axes: the immunity of state officials stemming from
the immunity of sovereign rulers. Note that this was a central argument of
the German defense during the Nuremberg trials to counter the prosecu-
tion’s claims and to challenge the legitimacy of the court. Article 27 of the
Rome Statute removes immunity for core international crimes (Carnero
Castilla 2007).
Classic international cooperation is based on the unitary state model, as
opposed to the “disaggregated state” discussed above. Cooperation, and
particularly extradition proceedings, does not take place directly between
courts or judicial authorities. Rather, extradition proceedings are con-
ducted by ministries of foreign affairs and other competent bodies. Judicial
authorities and prosecutors play a significant role during the internal or
72 A. NIETO MARTÍN
national stage of cooperation, since they advance requests for assistance

and they assess the fulfillment of the legal requirements to provide assis-
tance. However, diplomatic authorities and specialized officials are the
ones closely engaged and in charge of processing these requests, since they
have an exclusive competence in the area of external representation.
Within the judicial cooperation framework based on mutual recognition,
the European Union has established a revolutionary system providing for
the communication between courts and prosecutors.
2 Post-Westphalian Paradigm

of Judicial Cooperation
The departure from this approach is actually allowing for a steady estab-
lishment of a new post-Westphalian paradigm in terms of (i) judicial coop-
eration or mutual legal assistance and (ii) standards and criteria for the
spatial application of criminal law. A new generation of international con-
ventions on various forms of transnational crime has provided for different
forms of judicial cooperation or mutual legal assistance, assuming that
there is a shared interest in prosecuting cross-border crime. Under the
mantra of common security, threatened by corruption, terrorism, serious
economic offences, and, above all, organized crime, the long-standing dis-
tinction between original and derived jurisdiction has vanished in various
areas of judicial cooperation.
First, in all of these areas there has been a transformation regarding the
spatial application criteria of criminal law. In order to fill punishment gaps,
international treaties try their best to create a network of national jurisdic-
tions. The idea of a network, being the basis of any provisions governing
the spatial applicability of criminal law, moves away from the traditional
model based on the territory and on the exceptional application of the
extraterritoriality principle (Böse and Meyer 2011). The aim is not to
delineate the areas of sovereignty or power over criminal justice, but to
share them. In fact, territoriality is such a dysfunctional and defective stan-
dard that it is being superseded by tremendously broad interpretations
thereof, under which extremely weak territorial connections are allowed.
Recent international agreements extensively embrace legal standing crite-
ria based on the “defendant’s domicile” or “permanent residence” and,
regarding legal entities, based on their activity (Böse et al. 2013). States
thus assume that they must extend the applicability of criminal law in a
context full of jurisdictional intersections. Judicial cooperation was for-

merly illustrated by tangent circles that incidentally and occasionally inter-
sected. Now, we can picture the allocation of powers and jurisdictions as
overlapping circles with purposefully drawn intersection areas.
Extending universal justice or the principle aut dedere aut judicare is
only a step away from the jurisdiction network, and this step is quantitative
rather than qualitative. At this point, the distinction between transnational
offences (such as drug trafficking) and international crimes (genocide, for
instance) plays a role. Within the first category, extraterritoriality is sought
through the network. However, regarding the latter, universal justice is
more clearly legitimized. However, the line between the two is blurry, and
the network approach is also implemented for international crimes
(Fouchard I. 2013, p. 71 et seq). In fact, the different names and scopes of
application of international and transnational crimes can be due to the fact
that they stem from two different moments in history. International crimes
arise from the aforesaid progressive Grotian tradition, which begins after
World War II with the Nuremberg trials and the creation of the United
Nations. Transnational crimes, however, are a genuine expression of glo-
balization, its problems, and the current concept of security. In any event,
the point is that certain offences are no longer “internal affairs” of a given
country; now, there is a common interest in prosecuting them. The differ-
ences between original and derived jurisdiction become somewhat mean-
ingless in this context, where there is an actual shared or common interest
and not legal assistance (Böse 2019).
The regulation of judicial cooperation is an inherent part of interna-
tional conventions, such as the United Nations Convention against
Transnational Organized Crime (UNDOC 2004). Indeed, this UN
Convention slowly loosens and causes to vanish key aspects of the tradi-
tional cooperation approach, such as the ne bis in idem principle or double
criminality,1 the principles of specialization and specificity, or the non-
extradition of nationals (art. 16 (2) and 16 (11) UN Convention
Transnational Organized Crimen). There are some other forms of interna-
tional cooperation where the involvement of ministries has slowly loos-
ened, either because (i) states have designated central authorities, generally
reporting to the ministry of justice and thereby keeping the executive
branch involved, or (ii) mostly in urgent circumstances, because there is
court-to-court communication, as provided in Article 18(13) of the UN
Convention against Transnational Organized Crime, which allows to
74 A. NIETO MARTÍN
address requests for mutual legal assistance through the International

Criminal Police Organization (Joutsen M. 2005, p. 267).
A new principle is also gaining ground: positive comity (Slaughter
2014, p. 315 et seq). The purpose of positive comity is that states do not
wait for a request for assistance. Instead, they should actively cooperate.
To that end, under the aforesaid UN Convention, states must (i) sponta-
neously supply information relating to criminal matters to a competent
authority in another State Party (art. 18 (4) UN Convention against
Transnational Organized Crime); (ii) consider the possibility of transfer-
ring criminal proceedings to another State Party (art. 21 UN Convention
against Transnational Organized Crime); or (iii) establish joint investiga-
tion teams (JITs). Indeed, JITs are a paradigmatic example of this novel
judicial cooperation model (vid. Zurkinden 2013). The shared interest or
common goals pursued by judicial cooperation or mutual legal assistance
is evidenced by the requirement that states initiate, develop, or improve
training programs for “law enforcement personnel” (including judges,
prosecutors, police, etc., art. 29 et sep. UN Convention against Organized
Crimen), which is a way of exercising soft power, as discussed before. The
European Union approach entails the most radical transformation. The
EU model relies on the mutual recognition principle, which is in stark
contrast to each and every guiding principle of traditional cooperation.
Although with different names and at a slower path, international coop-
eration regarding common security is moving toward a similar model
(Nieto Martin 2018).
The appearance of new actors on the cooperation stage also character-
izes this new model, which is perfectly in line with the notions of “rela-
tional sovereignty” and “disaggregated state.” On top of the forms of
assistance directly connecting judicial authorities, police, and prosecutors,
cooperation between administrative agencies has intensified. As examined
below, this is the case for market supervisory bodies. This form of coop-
eration is certainly significant concerning market abuse and anti-
competitive practices. This work also deals with the appearance of
transgovernmental networks (also designated as inter-governmental net-
works), where the parties involved are national enforcement authorities
(police and prosecutors, inter alia) and private organizations actively
engaged in asset recovery. In this field, the Basel Institute of Governance
and its International Center for Asset Recovery is very remarkable. It is a
publicly funded, not-for-profit Swiss foundation that provides a decisive
technical assistance to judges and prosecutors worldwide to assist them in
recovering assets from tax havens (offshore financial centers) or in banks

located in countries such as Switzerland or Luxembourg.
Multinational corporations are also new players involved in judicial
cooperation mechanisms, regarding financial and economic crime and
corruption. Siemens is the most famous example, but there are many oth-
ers. Internal investigations and inquiries, along with regulatory compli-
ance altogether, are a form of public-private partnership that works as an
alternative to interstate cooperation. Encouraging corporations to disclose
or to blow the whistle on any misconduct around the world in exchange
for procedural advantages or reduced penalties is an efficient and speedy
way, due to its informal nature, to obtain information and evidence from
different jurisdictions (Nieto Martin 2013).
Authorities often encourage assistance and cooperation from private
stakeholders. However, some other times there is a requirement to pro-
vide such cooperation, as is the case regarding massive data storage and
information analysis. The paramount example being the obligations
imposed on airlines regarding passenger data storage. These information
storage obligations, falling within the scope of interstate cooperation, are
mainly aimed at crime prevention. Within this context, data protection
regulations have become the actual body of law for international coopera-
tion (see Chap. 5, Sect. 4.1), as evidenced by EU rules and regulations.
Nonetheless, data supply requirements and legal frameworks governing
data storage and delivery become somewhat pointless provided that there
are, on the one hand, companies dedicated to storing, processing, and sell-
ing information voluntarily supplied by users and, on the other, states that
purchase this information.
This example shows how security has clearly become a factor when it
comes to redefining judicial cooperation in criminal matters. The influ-
ence of security is most clearly exemplified by the close ties between police
and intelligence services. We now take for granted that these bodies
exchange information and cooperate. In fact, it has been expressly regu-
lated by the European Union.2 Most importantly, intelligence agencies’
methods have now been embraced by criminal justice systems. Europol is
a clear example of this, since its judicial cooperation approach greatly dif-
fers from Interpol’s. The purpose of the traditional police cooperation
model, embodied by Interpol, is to exchange information in order to
investigate specific crimes3; within the EU, this task is performed by the
Schengen Information System, not by Europol, whose main duty is to
prepare criminal intelligence reports (strategic and operational analyses)
76 A. NIETO MARTÍN
relying on intelligence services’ main instrument: the exchange and analy-

sis of information. Europol thus represents an approach to judicial coop-
eration or judicial assistance based on intelligence agencies’ methodology.
Also, Europol’s activities are in line with the types of crime related to the
new concept of security (Bachmaier 2012; Portero Henares 2019).
3 The Criminal Law of Territories

with No Sovereign
In order to fully map global law, we will finally examine “sovereign-less

territories,” including countries with a sovereign that is unable to enforce
their ius puniendi, like failed states or that are simply not willing to enforce
it, thereby becoming “lawless sanctuaries,” providing a fertile ground for
unlawful behavior. As discussed below, although they seem like diverse
situations, they all give rise to structurally or substantially similar issues,
the common denominator being that they all call into question the effec-
tiveness of the Westphalian paradigm of ius puniendi and criminal justice.
There are sovereign-less states or states that having a sovereign are either
unable or unwilling to enforce their ius puniendi. These states trigger the
need to establish a governance framework ensuring that the unlawful
behavior occurring therein is monitored and punished. These wrongful
acts affect the international community as a whole, either because they
qualify as transnational crimes, or because they interfere with global legal
interests like human rights.
Piracy first triggered the issue of crimes committed at sea or, better said,
the issue of crimes in an area over which there is no sovereignty.4 The his-
tory of piracy provides early examples of legal heavens or lawless states.
The United States or France sheltered pirates from justice in exchange for
their prizes taken at sea. Interestingly enough, these countries embodied
international law’s first reaction to piracy based on ius ad bellum. After
encouraging and tolerating pirates, they set up military operations to
ensure peace and security at sea. When piracy was first regulated in the
United Nations Convention on the Law of the Sea (UNCLOS), it was no
longer a problem, and the convention took a classic regulatory approach.
On the one hand, states are required to cooperate. On the other, UNCLOS
allows states that seize pirate ships to extend their jurisdiction to prosecute
and try piracy crimes.
Twenty-first-century piracy, off the Horn of Africa or in the Persian

Gulf, evidenced that UNCLOS approach to counter piracy was outdated,
partly because piracy crimes occurred in territorial waters subject to the
jurisdiction of failed states like Somalia. Consequently, the global gover-
nance of piracy gave rise to all the elements that make up global law. First,
it is worth highlighting the UN Security Council’s involvement, which has
issued a number of resolutions further developing or de facto implement-
ing UNCLOS regarding (i) state obligations; (ii) the harmonization of
their legal frameworks (aimed at unifying their respective definitions of
piracy); and (iii) the entitlement to exercise their right to punish or ius
puniendi in the territory of failed states like Somalia. Secondly, it is worth
noting the use of soft law instruments. See the ad hoc transfer agreements
superseding extradition treaties and allowing capturing states to hand over
the pirates to other countries for them to be tried therein. Thirdly, along-
side the UN, international organizations like NATO or the EU now com-
plete the regulatory network, having extended their original scope of
power to handle this issue. Fourthly, public-private partnerships have
emerged to counter piracy globally. These initiatives involve industry com-
panies (the Maritime Security Centre—Horn of Africa, MSC-HOA) and
Private Maritime Security Companies (PMSCs). This network of organi-
zations has given rise to various standards, including, among others, the
Code of Conduct concerning the Repression of Piracy and Armed Robbery
against Ships in the Western Indian Ocean and the Gulf of Aden, also
referred to as the Djibouti Code of Conduct, and the Global Integrated
Shipping Information System (GISIS) on information sharing (López
Lorca 2019).
The global criminal issue of illegal fishing (also designated as “pirate
fishing” or “poaching”) is structurally similar to piracy. It also takes place
on the high seas and thus outside of any national jurisdiction. The so-
called illegal, unreported, and unregulated fishing (IUU fishing) is a very
sector-specific criminal phenomenon. Maybe because of that it has gone
unnoticed. IUU fishing comprises a set of criminal behaviors related to
fishing, affecting a global legal interest such as the exploitation of fisheries.
IUU fishing intersects with other distinct targets of global criminal justice,
such as organized crime or corruption.
The classic, long-standing international law framework seems suitable
to appropriately punish IUU fishing. It suffices to apply the general rule
of flag state jurisdiction, a maritime law proxy for the principle of territo-
riality. According to this rule, the country where a vessel is registered has
jurisdiction over crimes on the high seas. Nonetheless, there is a
78 A. NIETO MARTÍN
shortcoming in this illegal fishing enforcement system: non-compliant flag

states. The whole Westphalian international criminal law building col-
lapses if a vessel registers in a country that has no intention whatsoever of
enforcing its punitive law to prevent or to punish illegal fishing.
International law allows for the free choice of flag or “flags of conve-
nience,” that is, it enables to pick and choose jurisdictions (some sort of
forum shopping) with no actual connection points. At least 20 countries
worldwide allow for open registries, thereby enabling vessels to fall under
their jurisdiction, where their jurisdiction means non-compliance with
international law. A change of flag state (reflagging), and thus of jurisdic-
tion, can even happen more than once in a single day (Valeije Álvarez 2020).
As we discussed regarding piracy, regulation through global law mecha-
nisms is on the rise. The UN Food and Agriculture Organization (FAO)
leads the way through the International Plan of Action to prevent, deter,
and eliminate illegal, unreported, and unregulated fishing. This plan is a
soft law provision, insofar as it (i) stems from FAO’s Code of Conduct for
Responsible Fisheries, and (ii) sets out a series of guidelines for states and
the industry to increase the effectiveness of the national efforts to prevent,
deter, and eliminate IUU fishing. Although FAO’s plan does not depart
from the general rule of flag state jurisdiction, it suggests states to apply
the principle of active personality in order for them to sanction their
national offenders regardless of the flag state (paragraph 21). The plan
also includes recommendations regarding due process and criminal proce-
dure. Paragraph 17 provides that national legislation should address evi-
dentiary standards and the admissibility of electronic evidence. Above all,
the plan encourages states to coordinate their activities and cooperate
directly in criminal justice investigations, and urges them to implement
mechanisms allowing for effective monitoring, control, and surveillance.
Internet offences (cybercrime) resemble crimes on the high seas. The
Internet can also qualify as an area where jurisdiction is unclear, which can
increase criminality. Perpetrators found a fertile ground for remote crimes
(i.e., criminal offences committed from distance), picking the location to
perpetrate the crime or the place where unlawful content can be stored. It
is a different territory altogether, with distinct time-space coordinates.
However, only perpetrators benefit from this new scenario, since the
investigation and prosecution of cybercrime still follows a classic para-
digm. There is no way to access data contained in a server located in a
different country without that country’s national authorities’ consent
unless the data are publicly available, as provided, for instance, in the
Council of Europe Convention on Cybercrime (Sieber and Neubert 2019).
The connection or links of the data with a specific area may be tremen-
dously weak or totally random, and the intervention of state authorities in
another state’s territory are minimum and not nearly as “aggressive” as the
physical presence of another country’s law enforcement officers conduct-
ing searches or performing arrests. In spite of that, cyber criminal law is
still tied to the territory. There is no detachment from the territory, not
even in “loss of location” cases where investigative authorities may access
the data but simply ignore their physical (territorial) location. The investi-
gation can be conducted, although without knowing from whom to
request judicial assistance.
As shown above, the situation in this newly created “territory” is in
stark contrast with that of lawless or non-compliant states, but it gives rise
to the same consequences: the impossibility of duly investigating the con-
nection with a territory, where there is no enforcer, is now due to the weak
link of the criminal behavior with the territory. This is why some scholars
advocate the departure from the Westphalian paradigm altogether, claim-
ing that the Internet should be considered a true global sovereign-less
“territory” like Antarctica or the high seas, where an international treaty
should govern the way to conduct investigations. However, I doubt that
this step will be taken, simply because of the high value of information
nowadays, as a source of wealth, which states want to control.
Failed states are those countries unable to enforce their punitive law.
Unlike “legal heavens” or non-compliant states, failed states do want to
comply, but they simply cannot. In these cases, international law has
focused on creating supporting bodies that make up for the national jus-
tice systems’ shortcomings. These are often tribunals, but there are also
supporting bodies acting as public prosecutors’ offices. The first tribunal
was the Special Court for Sierra Leone set up by the UN in 2002 to
address the atrocities committed during the country’s decade-long civil
war during the 1990s. The Sierra Leone Tribunal is halfway between an
international tribunal and a national court. It is tied to the United Nations,
but also to the national judiciary. After this special court, there have been
other tribunals with a similar structure (Angermaier and Höpfel 2005).
The International Commission against Impunity in Guatemala (CICIG)
shows how failed states or failed judicial systems can also be countered by
establishing bodies acting like a complementary public prosecutor’s office
(WOLA 2014, 2015). CICIG was created in 2007 by the UN Security
80 A. NIETO MARTÍN
Council as a response to the post-conflict situation in Guatemala following

the 1996 Peace Agreement. Organized crime had infiltrated state institu-
tions (including the judiciary) to a point that made it impossible to pros-
ecute crimes. CICIG’s mandate enabled it to carry out independent
investigations, to act as a complementary prosecutor, and to recommend
public policies to help fight the criminal groups along with national law
enforcement officers and public prosecutors, providing advice and training
to local authorities. CICIG was also entitled to bring criminal proceedings
before Guatemalan courts.
A similar initiative was implemented in Honduras, that is, the so-called
Mission to Support the Fight against Corruption and Impunity in
Honduras (MACCIH). Launched in 2006, MACCIH resulted from an
agreement between the Government of Honduras and the General
Secretariat of the Organization of American States (OAS). The starting
point was the Honduran justice system’s inability to tackle corruption and
to comply with international commitments. The agreement laid down
comprehensive mechanisms for the OAS to support Honduran authori-
ties. The purpose was to combat corruption and impunity, as well as to
support and provide advice for reforms to the Honduran justice system,
particularly regarding political party and electoral campaign funding. In
these fields and, above all, regarding crime prevention and enforcement,
the Mission was to fully supervise judicial bodies via international and
national expert committees with access to any judicial action. Also, these
forensic experts were mandated to train and certify all judges and prosecu-
tors working on corruption cases, and they were able to decide on which
proceedings to perform a closer scrutiny (OAS 2017).
Resembling failed states, there are countries undergoing armed con-
flicts with no identifiable domestic government. The so-called UN peace-
keeping missions (mutually reinforced by peacemaking or peacebuilding
missions) cover a wide range of initiatives affecting the design of ius puni-
endi in this sovereign-less area. Certain operations entail military deploy-
ments either for the preservation of public order (policing missions) or for
armed conflicts subject to humanitarian criminal law.5 Within this
sovereign-less area, covered by international organizations (the UN or
NATO) and foreign military units, the applicable criminal law—governing
the crimes of anyone temporarily exercising political power—needs to be
determined. It is worth deciding which legal system applies: either the
local legal framework or the national legal system under the principle of
active personality. Moreover, there must be limits on the immunity of
members of international organizations, and the applicable law must also

be established in this regard. The best-known case so far is that of UN
officials in Congo charged with sex crimes (Manacorda and Nieto
Martín 2009).
As shown above, there are no clear remedies to address the issue of
sovereign-less territories. Nevertheless, we point toward several approaches
(already known to us) that go along the lines of the various dimensions of
global law discussed above. Just like in the networked justice system exam-
ined regarding legal assistance or judicial cooperation, the principle of
active personality is strengthened at the expense of the territoriality prin-
ciple. Furthermore, failed states have reinforced UN Security Council’s ius
puniendi. In this regard, it is worth underlining the creation of mixed
bodies, neither fully supranational (like, for instance, the ICC) nor
national. However, in contrast with the World Bank and its anti-corruption
measures, which disregarded national judicial systems, there seems to be
an opposite trend nowadays. The prevailing approach is to enhance and
strengthen national criminal justice systems.
Notes
1. In fact, double criminality is an improvement with respect to classic extradi-
tion treaties or agreements, which provided for exhaustive lists of crimes.
This trend is also exemplified by the United Nations Model Treaty on
Extradition. Article 2 of this Model Treaty defines double jeopardy in simi-
lar terms to those used by the Court of Justice of the European Union
(CJEU) when defining “double criminality” in connection with the recog-
nition of foreign judgments (CJEU Judgment, Fifth Chamber, 11 January
2017, Case C-289/15), (regarding the evolution of double jeopardy, see an
extensive study in Muñoz de Morales M 2018).
2. Council Framework Decision 2006/960/JHA, of 18 December 2006, on
simplifying the exchange of information and intelligence between law
enforcement authorities of the member states of the European Union.
3. Police cooperation, which appeared over the nineteenth century to fight
“violent anarchists,” developed in an informal way, among police officers,
with no intervention by the legislature or by diplomatic authorities. In other
words, it followed a very similar model to the one discussed herein through
transgovernmental networks. Subsequently, police cooperation mechanisms
have become more formally constituted by means of treaties and conven-
tions, but they have always been incomplete and in any case not even com-
parable to judicial cooperation instruments (see Deflem 2005, p. 283 et seq).
82 A. NIETO MARTÍN
In respect to Interpol, the core activity is to locate fugitives. To this end, the
International Notices System is an essential tool to exchange information on
persons wanted by a legal jurisdiction. Aside from missing person cases, this
system relies on the notions of “threat” or “danger” only regarding persons
that have already been convicted but are still considered a possible threat to
public safety, using the so-called Green Notices (Haberfeld and
McDonald 2005).
4. See Vespasiano Pella: “Le caractère spécifique de la piraterie […] est
l’universalité de la répression. Cette universalité est justifiée non pas par le
caractère maritime du crime, mais par le lieu d’exécution du crime, lieu qui
doit se trouver en dehors de la juridiction exclusive d’un Etat déterminé.”
This quote further elaborates on the global regulation of piracy, and it can
be found in López Lorca B., Estrategias de cooperación en la lucha contra la
piratería marítima. See, in that same work, an example of global governance.
5. On all of these matters, see an extensive review in Manacorda S./Nieto
Martín A. (ed.), El Derecho penal entre la guerra y la paz. Justicia y
Cooperación penal en las intervenciones militares internacionales, Ediciones
de la Universidad de Castilla la Mancha, Colección Marino Barbero,
Cuenca, 2009.
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P. (ed.), Handbook for Transnational Crime & Justice, Sage Publications, 2005.
Bachmaier Winter L., Información de inteligencia y proceso penal, in Bachmaier
Winter L. (coord), Terrorismo, proceso penal y derechos fundamentales, Marcial
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Böse M. and Meyer F., Die Beschränkung nationaler Strafgewalten als Möglichkeit
zur Vermeidung von Jurisdiktionskonflikten in der Europäischen Union,
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Böse M., The evolution of criteria for global criminal law enforcement: Towards a
network of jurisdictions?, in Nieto Martin A. and Garcia Moreno B. (dirs)., Ius
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in the European Union, Nomos, 2013.
Carnero Castilla R., La inmunidad de jurisdicción penal de los Jefes de Estado
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Deflem M., “Wild Beats Without Nationality”. The Uncertain Origins of Interpol,
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B. 137, 2013.
CHAPTER 5
Legitimacy and Safeguards
1 Criminal Justice Outside of States?

Although we took it for granted, the first big question is if there is such a
thing as criminal justice or criminal law outside of (or aside from) states.
This begs the question as to whether the punitive or sanctions systems are
legitimate, both the public and private ones. Indeed, their purpose, that is,
to protect specific legal interests at stake, is very similar to that of criminal
law. An easy way to solve this problem would be to point out that most of
the abovementioned sanctions or penalties imposed outside of a state
structure are legitimate, insofar as the potential addressees (i.e., the parties
concerned) voluntarily abide by the sanctioning framework to which they
are subject. This is the case, for instance, of the World Bank’s sanctions
system. They are contractual in nature; they are conditions accepted by
any entities participating in World Bank-funded projects. The same applies
to FIFA sanctions and to any penalties or fines stemming from co mpli-
ance systems. These penalties are based on the same grounds as those aris-
ing from employment disciplinary procedures. A different issue altogether
is whether these private criminal justice systems (i) pursue public interests
and (ii) are used by states to regulate certain industries and sectors. This
new dimension requires further coordination between national legal
frameworks and private regulation, which shall include the principle of ne
bis in idem (double jeopardy).

Switzerland AG 2022
https://doi.org/10.1007/978-3-030-84831-6_5
86 A. NIETO MARTÍN
This “voluntary principle” argument, however, is no longer valid

regarding the ius puniendi of international institutions. This is precisely
when we should examine the legitimacy of stateless ius puniendi. The mat-
ter goes hand in hand with the way we conceive the legitimacy of legal
norms. According to a well-established scholarly view, the idea of democ-
racy, and thus the ultimate meaning of the legality principle, is closely tied
to the notion of demos, that is, to the belief that there is a pre-existing
nation or community. This pre-existing social community sets the limits of
the social contract, and therefore the extent to which majority decisions
can be binding on the remaining members of the community. Within this
meaning of democracy, the exercise of ius puniendi is an integral part of
nation-states. Outside of this framework, there is no room for a legitimate
right to punish, since the enactment of restrictive rules (i.e., rules limiting
or somehow interfering with individual rights) only makes sense if the
rules are agreed within nation-states or the aforesaid pre-existing commu-
nities (Meyer 2012, 616 et seq).
This understanding of democracy is shown, for example, by the German
Constitutional court ruling on the Lisbon Treaty and the powers assumed
by the Union regarding the definition of criminal offences and sanctions
under Article 83 TFEU. In its judgment, the German Constitutional
Court claimed that transferring powers in the field of criminal justice to an
international organization was contrary to the principle of democracy
(Böse 2010). States (or their governments after going through the legisla-
ture) should retain the ability to regulate a matter so closely related to the
demos like criminal justice. After all, criminal justice allows to implement a
form of ethical self-determination connected with a given community
(Perron 1997). Under this approach, not only the existence of a true
supranational criminal law framework would be objectionable, but also
merely seeking harmonization leaving national lawmakers (legislatures)
little room for departing from a specific line of criminal justice policy
would also be worthy of criticism. This is the case regarding drug traffick-
ing or money laundering, where states are constrained by the networks
described above and thus unable to take a different stance (Meyer 2012,
p. 655 et seq).
This view of democracy, as a system that can only be implemented
within a community, is neither the best nor the only possible one.
Individuals can exercise their right to self-determination in areas other
than the state and a pre-established community. This is why a stateless
criminal law can exist. In fact, the Westphalian state as we know is just a
5 LEGITIMACY AND SAFEGUARDS 87
valid instrument insofar as it allows to solve citizens’ problems. If all the

trouble arising from transnational crime cannot be solved within the
framework of state (national) ius puniendi, nothing prevents countries
from transferring their powers in the field of criminal justice to interna-
tional institutions. The thing is, and it is not trivial, that the organization’s
lawmaking process should allow for citizen participation and involvement
(Caeiro 2010, p. 67 et seq; Meyer 2012, 639 et seq). But the matter at hand
has to do with the conditions under which post-state criminal law can be
applied and enforced, where the debate revolves around how to transfer
the foundations of democracy and the rule of law from the national frame-
work to the post-state picture. The starting point in this relocation is that
recreating state-based democratic legitimacy models in the global sphere
is absolutely impossible (Krisch 2010, p. 266 et seq), which, in our case,
affects the shaping of the legality principle.
There have been certain post-state contexts, like the EU, where this
shaping has been relatively easy (in spite of the debate), since the EU’s
constitutional architecture resembles that of states. In other international
institutions it would be impossible to implement a codecision procedure
like the one in place to adopt criminal justice directives after the Lisbon
Treaty. The degree of involvement of national legislatures, through mech-
anisms like the emergency brake or the protocol on the application of the
principle of subsidiarity (Muñoz de Morales 2011, p. 744 et seq), is out of
the question in other international organizations. EU criminal law is closer
to a federal criminal justice system than to an international, and let alone
global, legal framework. However, this does not mean that some of the
instruments and principles generated by the EU should not be transferred
to the global stage (Beneyto Pérez 2014). As shown below, this is the case
with the principle of subsidiarity or the importance of deliberative democ-
racy in EU rulemaking.
2 Legitimacy of Post-State Ius Puniendi

Global criminal justice poses a wide range of legitimacy-related issues that
appear with varying degrees of intensity in the different bodies or institu-
tions acting within the framework of globalized criminal policy. Similarly,
the issues are not equally intense when it comes to setting up a punitive
law framework within a given organization, as in blacklisting or sports
sanctions. Regarding harmonization, it is worth differentiating between
soft law, hard law, and guidelines stemming from private actors. Since
88 A. NIETO MARTÍN
there is a wide range of possible situations, there are many ways to achieve
greater legitimacy. However, in spite of these differences, note that there
are several common features providing a halo of legitimacy to any institu-
tions within the global law regulatory apparatus. Undoubtedly, these
common features are (i) the organization’s transparency (Bianchi and
Peters 2013; Tzanakopoulos 2013); (ii) that citizens have remedies at
their disposal to oppose or object to the organization’s decisions; and (iii)
that the organization’s decisions be subject to review (Krisch 2010, p. 266
et seq).
2.1 Strengthening National Legislatures

Not all the possible improvements or requirements should refer to inter-
national institutions, whether public or private. Strengthening the pres-
ence of national legislatures in states’ external action (external affairs)
should also be a goal. There is no doubt that globalization has under-
mined the state’s monopoly on regulation. Moreover, when we examine
the global regulation system in closer detail, it is clear that globalization
has affected national legislatures the most, in their capacity as regulators,
and particularly in their role as rulemakers in the field of criminal law. The
main effect of global governance is a de-parliamentarization of lawmaking
(Álvarez 2005, p. 396 et seq).
Since they are confined within their boundaries, national legislatures
have no choice but to accept external criminal policy guidelines imposed
thereon. Indeed, national parliaments are unable to rebut or contest these
guidelines, either because they are impregnated with technical or
knowledge-based legitimacy, or because they are founded on a tremen-
dously high and thus inescapable consensus. The parliaments’ weakness as
lawmakers in the field of criminal justice, noted a while ago within the
national sphere (Diez Ripollés 2003, p. 17 et seq), increases due to the
pressure of global governance. Legislatures are unable to challenge any
draft legislation coming from the executive branch, and they are even
more powerless when these executive authorities (ministries) make deci-
sions within a transgovernmental network. There is no need to underline
that this whole process considerably affects the very concept of law and,
particularly, the nullum crimen sine lege parlamentaria principle for crimi-
nal matters, the point of which was precisely to assert the legislatures’
monopoly in criminal rulemaking (Pérez Luño2014).
This is a complex problem which does not only affect criminal justice
policy. It could be solved, however, through mechanisms allowing national
legislatures to monitor and ensure the accountability of state officials
engaging in international activity within transgovernmental networks,
whose role in criminal policymaking has proven decisive. This external
dimension of parliamentary activity should not be limited to monitoring
or oversight mechanisms. Rather, it should also cover the early stages of
rulemaking. In this scenario, ratification of international treaties—or any
other validation instruments, such as “accession” or “approval,” laid down
in the Vienna Convention on the Law of Treaties—are formal instruments
more so than substantial ones. They do not guarantee that legislatures
retain exclusive decision-making powers in the area of criminal policy.
These are purely Westphalian instruments, and they might not be as effec-
tive nowadays.1
2.2 Deliberative Democracy
Deliberative democracy is the most suitable cross-sectional instrument to
solve (or to mitigate, at least) any legitimacy issues that may arise both in
public and private organizations. The essential purpose of deliberative
democracy is to give back to citizens their main role in political decision-
making. This goal can be achieved by creating participatory mechanisms
based on two main premises: (i) any party concerned should be able to
engage in debate on an equal footing, and (ii) participation is inextricably
tied to the duty of giving meaningful arguments in order to enable delib-
eration. Regulation of lobbying and legislative capture, very usual phe-
nomena in post-state rules, are only a matter of (a)symmetric participation
and thus related to deliberative democracy (Nino 1997; Martí 2006).
The national statutory requirement principle (reserve de loi,
Gesestzvorbehalt) has been exclusively founded on representative democ-
racy. There is no doubt that it should continue to be this way. Nevertheless,
as I have thoroughly discussed in other works, due to the importance of
the pre-legislative or executive-branch stage of criminal lawmaking, the
reserve de loi should also cover this early phase in order to ensure the legiti-
macy thereof. These quality checks should be based on deliberative
democracy standards and criteria (Nieto Martin 2016, p. 418 et seq). This
new structure should be reproduced when the pre-legislative stage takes
place within a global governance body instead, regardless if the rule in the
making is an international treaty, a soft law provision, or a private
90 A. NIETO MARTÍN
standard. Therefore, provisions ranging from Financial Action Task Force

(FATF) recommendations on money laundering to UN Security council
resolutions on terrorism (which, as shown below, operate as true direc-
tives) should be assessed through the lens of deliberative democracy.
The suggested path is largely unoriginal. Most rulemaking organiza-
tions in the global governance scenario are having a heated debate on the
improvement of decision-making processes, mostly inspired in deliberative
democracy approaches (Álvarez 2005; Noortmann and Ryngaert 2010;
Peters et al. 2009; Johnstone 2011). Within classic international organiza-
tions, many amendments in the rulemaking procedures focus on increas-
ing transparency to prevent lobbying or legislative capture by multinational
enterprises (Muchlinski 2010, p. 9). Encouraging a deliberative process
where the parties involved participate under equal conditions will avoid
the negative implications of an ill-designed deliberative process. An ill-
conceived participatory process enables lobbying and legislative capture
by certain NGOs and large corporations (the only stakeholders capable of
participating effectively). Furthermore, international institutions’ lawmak-
ing processes should also ensure that (i) states have equal weight, and (ii)
the scope of deliberative democracy rules also be extended to any multilat-
eral negotiations of international treaties (Álvarez 2005, p. 338 et seq,
p. 397).
Transgovernmental networks are also engaging in this debate on the
improvement of decision-making, since they are fully aware that technical
or knowledge-based legitimacy is not enough (Slaughter 2014, p. 219;
Álvarez 2005, p. 244 et seq).2 Standardization bodies are also seeking to
enhance their rulemaking processes. This has often brought along an
improvement in their governance systems, including therein consumer
associations and other stakeholders affected by standardization bodies’
activity. This has been the case within the EU, which expressly regulates
these bodies and specifically deals with this aspect. In fact, EU regulation
in this regard provides that standardization bodies should be subject to
public oversight (Büthe and Mattli 2011, p. 216 et seq). The WTO core
principles on standardization bodies, which inform national or regional
regulation, expressly provide transparency requirements and that there be
no conflicts of interest.3
Indeed, any legitimacy issues should be addressed within multinational
corporations and their self-regulation frameworks, and compliance pro-
grams should be specifically discussed. Braithwaite, Christine Parker, and
other scholars have been insisting on this for a while now. The best proof
of compliance systems’ effectiveness and lawfulness is probably that they

allow parties that could be affected by the company’s activities to partici-
pate in compliance programs. From this perspective, it is worth highlight-
ing the establishment of supervisory bodies in Spain and Italy in connection
with criminal liability of legal entities. The purpose of these supervisory
bodies is to monitor or oversee compliance programs in an independent
manner. This is the right body to place stakeholders (Parker 2002, p. 197
et seq; Nieto Martin 2021).
2.3 The Principle of Subsidiarity

The principle of subsidiarity is central in any discussions of European crim-
inal law and its legitimacy. This principle should be applied to global crimi-
nal justice as an essential complement for the liberal Enlightenment
principles (the principle of ultima ratio or last resort, protection of legal
interests, etc.). Subsidiarity entails that any decisions affecting citizens
should be adopted as close to them as possible, to enable greater participa-
tion and closer review. Taking the debate on criminal policy up the ladder
from the national scenario to European, international, or global spheres
must always be subject to a strict scrutiny and duly reasoned and justified
(Muñoz de Morales 2011, 313 et seq).
As in the EU, subsidiarity must at least bring about the lawmakers’ duty
to give reasons to show why harmonizing criminal justice policy in certain
fields is necessary.4 Subsidiarity should be a filter to critically assess the
criminalizing arguments arising from the notions of security and transna-
tional crime. These notions are the topoi most frequently used to legiti-
mize the enlargement of criminal justice areas affected by global
governance. Most certainly, the application of these notions is not politi-
cally neutral. The paramount example of political bias or undue influence
in criminal justice is the criminalization of immigration. Criminal policy in
this matter, which is focused on punishment rather than prevention or
deterrence, benefits the most developed countries. More specifically, the
fact that greater efforts are put into punishing the illicit trafficking of art-
works than into fighting against trafficking in hazardous waste evidences
the real ideology underlying transnational criminal policy. In other words,
subsidiarity should allow (i) to reveal the various clashes and international
cleavages (Northern countries-Southern countries, rich countries-poor
countries, West-East, etc.) affecting the international criminalization of
conducts, and (ii) to re-examine notions such as transnational offence. In
92 A. NIETO MARTÍN
fact, number (ii) above has already happened under the Lisbon Treaty:
Article 83 TFEU provides a numerus clausus of areas of cross-border crime.
3 Global Criminal Law: Which

Fundamental Rights?
National constitutions tackle three core aspects: division or allocation of
powers, decision-making, and fundamental rights. Above we discussed the
first two aspects. Below we will determine which fundamental rights are
meant to protect individuals in this new scenario. There are various debat-
able aspects, such as the controversial relationship between multinational
corporations and human rights. If multinational enterprises are interna-
tional players in the globalized world as powerful and influential as states
(or even more), and they can have an enormous impact on individual
rights, they should reasonably be at the same level. This would entail that
multinational corporations are required to (i) not undermine individual
rights; (ii) protect such rights; and (iii) remedy any violations thereof
(Fernandez Liesa and López Jacoiste 2018; Forcada 2018).
At this point, we will focus on the pivotal element of global constitu-
tionalism. As pointed out before, the defining feature of global law is the
simultaneous or overlapping application of national legal systems and reg-
ulatory frameworks stemming from public bodies (like international insti-
tutions, for instance) and private entities. Furthermore, law currently
triggers constant interactions and intersections between national legal sys-
tems, that is, the so-called situations of “interlegality.” These situations
often give rise to conflicts affecting the safeguards in place in each legal
system. Under a state’s or an international institution’s legal system, a
given rule or decision stemming from another legal framework can be
considered contrary to the applicable guarantees or core values.
The famous Kadi case is probably a paradigmatic example of these
interlegality conflicts. As is well known, prior to enforcing UN Security
Council sanctions imposed on Mr. Kadi (he was singled out for sanctions,
in particular for an assets freeze, because he was identified as a possible
Al-Qaida supporter) UK authorities requested a preliminary ruling from
the CJEU (Court of Justice of the European Union) on the compatibility
with EU law of the Security Council’s sanctions system guarantees (ECJ,
3.9.2008). In 2005, the ECtHR had ruled in the Bosphorus case (ECtHR
(Grand Chamber), Bosphorus v. Ireland, 30.6.2005, Application n°
45,036/98), which had a similar background. In Bosphorus, Irish courts

called upon the ECtHR to clarify if the safeguards provided in the EU
regulation requiring Irish authorities to impound a Turkish aircraft for its
activity in the Balkan War fulfilled the fundamental right requirements set
out in the European Convention.
These conflicts can involve decisions of any actors engaged in global
governance. It is conceivable that a company that has been blacklisted by
the World Bank claimed that there was a breach of the applicable safe-
guards when being excluded from a given state’s public procurement pro-
cedure. Likewise, a company’s senior manager fired following an internal
investigation could claim before a national court that there were pieces of
evidence violating his right to privacy or the secrecy of communications.
These interactions, contrary to what could be inferred so far, do not only
appear when it comes to enforcing a sanction. We can also find them else-
where; for instance, when defining criminal offences. For example, ISO
19600 could be raised to claim that a company has implemented (or failed
to implement) an effective compliance program, just like OHSAS 18001
could be invoked to further define the duty of care in case of workplace
accidents. What if someone argued that these rules and standards (provid-
ing the basis for a criminal sanction) are not legitimate enough? Also, the
abovementioned interactions occur at a procedural stage: for example, the
claimant submits as evidence in a criminal case a set of emails found by a
company as a result of an internal investigation.
The main reflections about these conflicts come from the context of
judicial cooperation (Nieto Martin 2010). In this area, the issue is basi-
cally the same: when deciding on a request for judicial assistance, countries
must determine if, under their legal order, there are sufficient guarantees
in the requesting state or in the country where evidence to be presented
in court has been obtained. This matter is now central, considering that,
under this context of global crime, cross-border issues are no longer ancil-
lary; they are now an essential element of criminal proceedings.
Up to this point, all of these matters (i.e., the aspects regarding both
the aforesaid cases of judicial cooperation and leading cases such as Kadi
or Bosphorus) have been put under the scope of multilevel constitutional-
ism. The methodology applied by multilevel constitutionalism when deal-
ing with fundamental rights relies on “empathetic dialogue” (Poiares
Maduro 2003) based on a constitutional pluralist conception of the rela-
tionship between the various judicial authorities. Such “empathetic dia-
logue” sometimes loosens the standard of protection of fundamental
94 A. NIETO MARTÍN
rights applied by the international or domestic court reviewing the foreign

court’s decision. However, “empathetic dialogue” can also force another
country’s judiciary to raise the standard of protection for fundamental
rights, because otherwise it might be left out of the whole judicial assis-
tance picture.
Domestic legal orders must follow this same strategy with regard to
non-state legal systems, thereby steadily increasing their guarantees and
safeguards and thus their degree of legitimacy. Both courts of justice and
lawmakers (legislatures) are responsible for this. For example, judges
should assess the degree of legitimacy of any private standards on which
they base their decisions. A private rule that has not been adopted under a
transparent and participatory process should not be the basis to criminal-
ize behaviors. Similarly, judicial authorities must specify (i) the extent to
which information resulting from internal investigations should be admit-
ted as evidence in a criminal case, or (ii) when should sanctions imposed
by non-state actors be enforced.
Keep in mind that legislatures are also responsible for this. Within mul-
tilevel constitutionalism, the notion of “interface norms” or “interface
rules” has gained ground (Krisch 2010, p. 285; Arroyo Jimenez 2016). In
the field of information technology, interfaces allow users to interact with
computer systems, thereby enabling two different “systems” to communi-
cate with each other. This metaphor aptly describes the role of these new
rules, that is, allowing for the various systems comprising global gover-
nance to cooperate and interact among each other. Self-evidently, these
“interface norms” should not be a “free entry card” allowing any non-
state provisions or decisions to access the system. One of interface norms’
main purposes is to lay down the legitimacy requirements to be fulfilled by
non-state systems in order for their provisions to be taken into account.
Any EU provisions on standardization bodies, as well as any pieces of draft
legislation on corporate internal investigations, serve this purpose.
Accordingly, interface norms are also, in a way, rules that acknowledge
other legal systems’ decisions and provisions.
Within the context of multilevel constitutionalism, there has been criti-
cism against the pluralism and judicial dialogue methodology. In particu-
lar, some claim that it creates a legal “no-man’s-land” where individuals
are unaware of their fundamental rights, having to await an uncertain
debate between various stakeholders critical of this type of construction
(Baquero Cruz 2008; Pérez Manzano 2019). National legislatures’
involvement in this regard is essential to put an end to these critical voices.
Setting out interface norms can get complicated when interconnecting

two national legal orders. This is the case regarding judicial cooperation,
where it is hard to go beyond general, broad notions such as “public
order.” However, setting out interface rules is not as complicated when
regulating non-state legal systems. Domestic legal orders are in a privi-
leged position, that is, they prevail over the remaining frameworks, since
the effectiveness and enforceability of their rules ultimately depends on
the national (state) coercive mechanisms.
4 The New Rules of Global Cooperation

Above we examined the transformations undergone by global coopera-
tion. First of all, global cooperation now qualifies as stateless cooperation,
which has a twofold implication. On the one hand, private actors have
emerged as global players engaging in global (formerly state-based) coop-
eration. On the other, cooperation is increasingly taking place within a
context of disaggregated states, via transgovernmental networks, outside
of traditional diplomatic channels. Second, current judicial cooperation
can be categorized as networked cooperation, whose underlying rationale is
to close immunity gaps, seeking the intersection of those legal orders enti-
tled (or empowered) to investigate and to assess the facts. This is not a
form of cooperation carefully designed by states keen on exercising their
ius puniendi by all means. Rather, it is a form of cooperation for states
having common interests and shared goals. This new design has a few
shortcomings: (i) conflicts of jurisdiction and (ii) the issue of ne bis in idem
or double jeopardy. Third, global cooperation is essentially security ori-
ented. It is not only aimed at investigating and prosecuting criminal
offences. Global cooperation also aims at deterring certain types of crime.
To this end, global cooperation applies risk assessment techniques, where
the involvement of individuals is, yet again, central, along with data
processing.
4.1 The Importance of Data Protection Law

Being the cornerstone of globalized judicial cooperation, the notion of
security has triggered far-reaching changes in terms of methodology and
actors involved. On the one hand, it has prompted a series of legislative
measures aimed at facilitating the massive accumulation of data and the
exchange of data between investigative authorities (the police, public
96 A. NIETO MARTÍN
prosecutors, or judges), including intelligence services. These data are

subsequently analyzed, and these analyses can restrict individual rights.
On the other hand, security has encouraged or, better said, pushed, public-
private cooperation into crime prevention and investigation, in order to
allow for the use of data collected by certain companies, such as telecom-
munication corporations or social network companies. In this vein, it is
worth noting (i) the obligations concerning money laundering/terrorism
financing or market abuse imposed on certain entities in order for them to
be “gatekeepers” and to detect any suspicious activity, as well as (ii) the
requirements applicable to certain companies, like those imposed on air-
lines regarding the disclosure of passenger data to European authorities.
This form of cooperation is meant to have a global dimension, which
naturally results from the type of crimes it investigates and prosecutes (ter-
rorism has been a key driver in this regard) as well as from the “stateless,”
“de-nationalized” global area where it occurs, with the Internet and mod-
ern communication systems playing a prominent role. The data required
for the investigation or prevention of terrorism in Europe can be stored by
a service provider based in the United States or China and, conversely,
some of these countries can request data from European authorities or
companies.
The classic legal framework for judicial cooperation or judicial assis-
tance is not conceived for this kind of cooperation. The law on judicial
assistance, even in its most current versions based on mutual recognition,
still regulates or addresses interstate cooperation. It does not provide for
the appearance of private players within the framework of cooperation law.
It neither provides for information exchanges with crime prevention pur-
poses. The law on judicial cooperation is now being replaced by data pro-
tection provisions, which have an increasingly important role within the
context of judicial cooperation. EU provisions and CJEU rulings slowly
but surely shape the most significant aspects of this new form of judicial
cooperation, but there are still many unanswered questions (De Busser
and Vermeulen 2010; Pedraz Penalva 2010; Gutierrez Zarza 2012;
Colomer Hernández and Oubiña Barbolla 2015).
Remarkably, EU data protection law provides for a special regime gov-
erning anything related to security and crime prevention and investiga-
tion.5 The free movement of data has become the key driver of this special
regulation. Regarding the collection, use, and exchange of data and infor-
mation, security outweighs the constitutional rights at stake (privacy and
free information). Some claim that granting to data subjects the rights of
access, rectification, or erasure and the right to object would undermine
security. Based on this premise, both EU law and, particularly, the Court
of Justice, have begun to set some limits. There is no doubt that a key rule
on data processing is that “[t]he data subject should have the right not to
be subject to a decision evaluating personal aspects relating to him or her
which is based solely on automated processing and which produces adverse
legal effects concerning, or significantly affects, him or her” (Recital 38
of). This prohibition prevents any restrictive measures on individual rights
exclusively based on automated processing or profiling, and grants to data
subjects the right to seek human intervention on the part of the controller
(Art. 11 Directive 2016/680). From the perspective of classic safeguards,
and particularly on the basis of the proportionality principle, the need to
give reasons remains a main requirement when limiting or somehow
restricting individual rights.
The CJEU judgment in Digital Rights Ireland (ECJ (Grand Chamber),
8 April 2014. Cases C-293/12 and C-594/12) provides the keys regard-
ing massive storage of data by private entities for the purpose of prevent-
ing and investigating serious crimes. This matter had already been dealt
with in connection with the obligations imposed on airlines concerning
the disclosure of passenger data. As is well known, EU law requires the
massive storage of traffic and location data generated from electronic com-
munications services. It also requires to retain data concerning Internet
access, Internet e-mail, and Internet telephony from all European citizens,
regardless if they are suspects of crimes.6 Although the CJEU considers
that these obligations are legitimate, it applies a strict proportionality test,
thereby reducing its deference toward EU lawmaking. The reason for
applying this stringent proportionality test is that, according to the Court,
the aforesaid storage of data qualifies as a “particularly serious” interfer-
ence with the rights to data protection and privacy. The Digital Rights
Ireland ruling sets out several requirements applicable to massive data
storage for the purposes of preventing and sanctioning serious offences.
These obligations ultimately require that any investigations involving data
processing be selective, having regard to (i) the specific legal contexts of
the data subjects whose data are stored; (ii) the extent to which certain
groups may qualify as “suspects,” and that (iii) the investigations be sub-
ject to a clear and precise regulation on the applicable limits and guaran-
tees. No authority, by any means, may access massively stored data based
98 A. NIETO MARTÍN
on a vague or unclear intention to investigate or prevent a serious offence.

The ECJ also clarifies that the sole storage of data constitutes an interfer-
ence with the data subject’s right to privacy and data protection. The
Court finds an interference with these rights regardless of whether the
data may be sensitive or whether there has been a prejudicial decision
related to the processing of the data subject’s data.7
The case law doctrine settled in Digital Rights Ireland underlies the
Court’s decision in Schrems (ECJ (Grand Chamber), 6 October 2015,
Case C-362/14). Shortly after Digital Rights Ireland, the ECJ was forced
to deal with a key aspect in global cooperation law: international data
transfers. The facts leading to the request for a preliminary ruling aptly
illustrate the notion of global judicial cooperation. Mr. Schrems was a
Facebook user whose personal data were transferred to the United States
by Facebook Ireland. Although there were no reasons to think that Mr.
Schrems could have committed a crime, his personal data were analyzed
by the National Security Agency (NSA) and the FBI. Note that the data
were transferred for commercial reasons, but they ended up in the hands
of investigative and law enforcement authorities.
The Court of Justice’s decision provides the guiding principle for inter-
national data transfers, that is, there must be “an adequate level of protec-
tion” for privacy and fundamental rights and freedoms. Such degree of
protection must not be assessed in the abstract or generically or, let alone,
in a non-dynamic manner. Even if the European Commission or national
data protection authorities deem that a given country generally provides
an appropriate level of protection, any decisions must be made on a case-
by-case basis in order to ensure that individuals are sufficiently protected.
This notion of “adequate level of protection” follows a famous rationale in
the field of international law: functional equivalence. To determine if an
adequate level of protection is ensured, there need not be identical protec-
tive mechanisms; in fact, they can be completely different. However, it is
essential that, after a thorough analysis of the relevant national provision
and its application, there be an equivalence between both domestic legal
frameworks. This criterion can be paired with classic judicial cooperation
notions such as public order or the ad extra or external substance and
effect of fundamental rights. As we all know, these classic notions fall
under the scope of interface clauses facilitating the interconnection
between two different systems.
4.2 Conflicts of Jurisdiction and International Ne Bis in Idem

As explained above, judicial cooperation within global law qualifies as net-
worked and stateless cooperation. Trying to set up a network of jurisdic-
tions and public and private actors is a commendable goal that should not
be criticized, insofar as it shows that there is a common interest. Judicial
assistance frameworks can no longer be aimed at regulating cooperation
between states seeking their own criminal justice objectives in an uncoor-
dinated and disorderly fashion. The current situation clearly evidences that
there is a very different model resting on the premise that international
actors pursue a common interest (Chap. 4, Sect. 2). A model based on the
progressive Grotian tradition requires to apply the ne bis in idem principle
(double jeopardy), along with additional guarantees, to the world of judi-
cial cooperation. Although some decisive steps have been taken following
the Soering ruling, individuals and entities affected by judicial cooperation
are still not involved in the construction of this legal framework, which
still solely relies on states (See Gless and Vervaele 2013; ECPI 2014).
Indeed, setting up such a network increases effectiveness, but this increased
effectiveness cannot be embraced at the cost of losing safeguards and
guarantees. As a result of this network, lately there have been many cases
of international double jeopardy, particularly regarding anti-terrorism and
economic crime (Vervaele 2018).
The existence of several ongoing procedures in different countries,
whether simultaneous or not, entails unbearable costs for most people,
including “natural penalties” (stress or anxiety, among others) for being
subject to several parallel procedures. Also, note that (i) it can be hard for
defendants to effectively defend themselves, and (ii) that legal certainty
can be severely undermined, since penalties can change considerably from
one legal order to another (Zimmermann 2013; Conway 2003).
The fact that these issues are yet to be solved does not mean that they
are new. What is in fact new and makes everything even more complicated
is that the category of sanctions and penalties is more blurred or undeter-
mined. Penalties can stem from non-state punitive law frameworks. For
instance, a given company may very well be punished for corruption in
several countries and be blacklisted by the World Bank at the same time.
The same applies to individuals: on top of any criminal penalties under the
applicable national legislation, they may have been subject to an internal
investigation by their company giving rise to a disciplinary sanction. From
the standpoint of classic state-based ius puniendi, the implementation of
100 A. NIETO MARTÍN
privately enforced penalties does not raise any concerns regarding the ne
bis in idem principle. However, when examined from the perspective of
the global law governance model, everything changes; public and private
actors belong to a coordinated regulatory network seeking similar goals
and results. In other words: they are involved in the same anti-corruption
criminal justice policy. Criminal liability of legal entities is an example,
among others, of the ways to encourage compliance and, as part thereof,
there is the application of disciplinary sanctions.
Along with these issues, it is worth discussing the victims of many trans-
national offences. Major financial scams or cybercrime can affect people
worldwide. Victims’ rights, formerly a guiding concern to modify criminal
procedures, are yet to appear in the transnational crime debate which, for
the time being, is exclusively focused on increasing effectiveness.8
Building an international ne bid in idem principle (double jeopardy) is
complicated for various reasons. First, because this principle’s transna-
tional dimension is not enshrined in any international treaty other than in
the convention implementing the Schengen Agreement following the
CJEU’s interpretation of Article 54(2) thereof (Vervaele 2013). There are
countries that plainly reject the importance of this principle in their domes-
tic legal orders, whereas others (although not fully) do try to give impor-
tance to it. Most commonly, states acknowledge the so-called credit system
(Anrechnungsprinzip), that is, out of the two dimensions of ne bis in idem,
(i) the ban on a double punishment (ne bis puniri) and (ii) the ban on a
double charge, double trial, or double procedure (ne bis vexari), the credit
system entails allowing for a second procedure while taking into account
the punishment imposed in the first procedure, so that the previous pen-
alty is credited against the subsequent one. Also, national legal frameworks
often admit the ne bis in idem principle in connection with extradition.
Ever since the 1957 European Convention on Extradition, the fact that
the potential extradited person had already been punished has been con-
sidered grounds for denying extradition. An additional difficulty to build
an international double jeopardy clause is that the ne bis in idem principle’s
national dimension has various expressions. Regarding domestic legal
frameworks, we find major inconsistencies concerning the two aspects of
ne bis in idem: What constitutes the same facts? What qualifies as the same
punishment? (Garcia Rivas 2019). First, there is a clash between a factual
or historical concept and a normative element. The second question poses
a debate about the concept of “sanction” or “penalty” and criminal law
“in the broad sense.”
Given the situation, it would be naive to think that the ne bis in idem
principle could be enshrined in an international treaty and thus gain an
international law dimension. Rather, it seems like it will be implemented
and enshrined slowly and on a case-by-case basis. See, for example, how
Article 20 of the Rome Statute lays down a rule of ne bis in idem or how
the International Criminal Tribunals for the former Yugoslavia and
Rwanda acknowledged this principle. These double jeopardy clauses are
not affected by the so-called shameful trials, where countries act quickly,
sentencing international criminals to ridiculous penalties in order to pre-
vent any other country from taking action. This international ne bis in
idem should be built so that “the same penalty” is only required if the
punishment imposed by the first state is similar to the subsequent one. It
would be unreasonable to shut down a state’s right to punish solely
because another country has imposed an administrative penalty or a crimi-
nal sanction for a less serious offence. For exactly the same reason, it seems
like we should apply a normative construction of the punishable facts, that
is, the relevant facts should only be those that are ultimately significant in
light of the punishable offence. Exceptions to the ne bis in idem principle
can be made if decisive evidence surfaces in a given country. If this were
the case, there could be a new trial where the first penalty would have to
be taken into account under the credit system (Anrechnungsprinzip,
Conway 2003, p. 217 et seq). These solutions, intended to strike a fair bal-
ance when shaping the principle, are also the ones to be applied in case of
privately enforced sanctions. Blacklisting, by either the UN Security
Council or the World Bank, should be considered when countries must
impose a punishment under their domestic legislation.
In reality, the principle of ne bis in idem is only an urgent remedy con-
cerning double (or triple) trials. It is a bad response that turns the adjudi-
cation of the case and the law applicable (or the “jurisdiction to prescribe”)
into random aspects that have nothing to do with individual guarantees,
effectiveness, or victims. Let us think of investment frauds: if the case is
tried in a specific country, the victims living therein will be more likely to
be redressed. Injured parties living in other countries, for technical and
logistic reasons, will be less likely to be appropriately and effectively com-
pensated. The law applicable to the case and the final outcome will be
totally random, since these aspects will work on a “first come, first served”
basis. The current situation thus reveals a major inconsistency issue and
timing problems: international provisions tell domestic legal systems what
to ban and when to try punishable offences, but these very provisions fully
abide by national sovereignty, thereby enabling all countries to start their

own proceedings.
The networked jurisdiction model would be much more consistent if,
in addition to establishing applicability criteria for criminal law, like the last
set of international conventions, it provided for rules on conflicts of juris-
diction. However, right now this is an unattainable objective, at least if the
ultimate goal is to come up with a global uniform solution to be laid down
in an international treaty. Proof of this is EU law. Whereas the CJEU has
implemented an avant-garde version of the ne bis in idem principle, there
is no consensus as to conflicts of jurisdiction. Within the Council of
Europe, the European Convention on the Transfer of Proceedings in
Criminal Matters has neither been successful.
First, note that conflicts of jurisdiction can differ from one another
depending if they occur in connection with crimes related to international
criminal policy or from strictly national criminal offences with no interna-
tional links whatsoever. Within the scope of purely domestic criminal jus-
tice, conflicts of jurisdiction can entail a clash between contrasting criminal
policy objectives. However, regarding transnational crime, states take very
similar stances, so conflicts of jurisdiction in the field of transnational or
global crime usually involve similar national approaches to criminal justice
policy. As a result of global governance, there is a high degree of harmo-
nization in areas like organized crime, corruption, or money laundering.
The conflict here is due to the aforesaid timing problems between the
“jurisdiction to prescribe” and the “jurisdiction to adjudicate.” Perpetrators
of globalized offences assume that their transnational crimes (in contrast
with strictly national offences) will be punished in most countries
(Zimmermann 2019, p. 427 et seq).
This situation, which is better in terms of legal certainty and predict-
ability, allows to draft less complicated rules. Broadly, there are two con-
flicting approaches to conflicts of jurisdiction (pun intended). The first
model is hierarchical: its purpose is to rank the various criteria to establish
jurisdiction. For instance, there could be a rule requiring that the punish-
able offence be tried where it took place or, failing this, where the result
of the crime occurs, or otherwise in the alleged perpetrator’s or victim’s
place of residence (Echle 2013). Depending on the types of crime and
their specificities, this rigid hierarchy could be flexibilized, or slightly bent
by modifying the criteria. For example, in an anti-bribery convention, the
relevant public official’s country (active personality principle) could have
more weight as a rule to determine jurisdiction. A second approach to
conflicts of jurisdiction is the so-called negotiated model. Under this

approach, there are no rigid rules, but guidelines, and the states involved
would negotiate to solve the conflict. Obviously, the first model is a lot
better in terms of legal certainty, but it is not always feasible.
Therefore, there is no single rule to regulate conflicts of jurisdiction. As
in the ne bis in idem principle, we should take a sector-specific approach,
on a “convention-by-convention” basis, in order to strike the best possible
balance between the interests at stake. A negotiated model could make
sense if the relevant provisions are uniform or consistent, including simi-
larities between the penalties. Admittedly, this model is more likely to be
abused, insofar as it enables forum shopping (e.g., the parties could agree
to apply procedural rules under which otherwise inadmissible evidence be
admitted). However, this fertile ground for abuse can be mitigated if there
is a transparent negotiation involving the alleged offender and (why not?)
the victims. The greater the differences between the provisions at stake,
the more close-ended or hierarchical the model should be, in order to
enhance the applicable guarantees and predictability.
There is room for a third approach. The legal certainty issues posed by
conflicts of jurisdiction for alleged perpetrators can be mitigated with
some checks and balances within national legal orders. For example, as in
several legal systems, these problems could be mitigated by (i) applying
error in law clauses where there is an error in the rules providing where
criminal law applies; (ii) through self-restrain by each domestic legal order,
(iii) by laying down stricter and more limited jurisdiction criteria, and so
on (Zimmermann 2019).
Notes
1. The proposal of having some sort of parliamentary control over these new
state officials engaging in external action comes from Slaughter A.M., (foot-
note 9), p. 230 et seq. This proposal goes beyond the parliamentary (Cortes)
oversight provided in the Spanish legal order at the so-called intermediate
stage of the treaty ratification process. Under Article 94(1) of the Spanish
Constitution, prior to concluding any treaties with an impact on criminal
justice, the government must be previously authorized by the Cortes.
However, note that this authorization or approval is non-binding. Perhaps,
it would be advisable to improve parliamentary oversight during treaty
negotiation processes, but it is definitely necessary to create new monitoring
instruments fully covering any government’s external action that could have
a legislative or regulatory impact, even by setting standards or passing soft
law provisions. Furthermore, at least in Spain, the Cortes Generales are not
too active when it comes to suggesting changes to draft treaties submitted
by the government, cf. Ortega Carcelén M.,(footnote 1), p. 190.
2. Technical or knowledge-based legitimacy tremendously increases the influ-
ence of the most developed countries as well as of companies, whose R&D
departments are ahead of most governments. Notwithstanding the forego-
ing, there are major transparency issues in these decision-making processes.
See Slaughter A.M. (footnote 9), p. 219, who uses as an example the Basel
Committee on Banking Supervision decision regarding the banks’ liquidity
ratios; see also Álvarez J.E. (footnote 99), p. 244 et seq.
3. Within the European Union, standardization bodies are subject to a com-
mon framework, Regulation (EU) No. 1025/2012 of the European
Parliament and of the Council of 25 October 2012 on European standard-
ization, L 316/12.
4. The Manifesto on European Criminal Policy drafted by the European
Criminal Policy Initiative defines the principle of subsidiarity as follows:
“Instruments which are relevant for criminal procedure law and which are
enacted on the basis of shared competences must, in accordance with the
general principles of Union law (art. 5 para. 3 TEU), observe the principle
of subsidiarity. According to this principle, the Union legislator may take
action only on the condition that the goal pursued: (a) cannot be reached as
effectively by measures taken at the national level; and (b) due to its nature
or scope can be better achieved at Union level. The principle of subsidiarity
applies to instruments regulating criminal law cooperation between the
Member States, to harmonization of national procedural law and to the
establishment of supranational institutions or entities such as the European
Public Prosecutor’s Office. Accordingly, the national legislator should have
priority over the Union legislator to the extent that the Member State can
deal with a given issue. In that way, citizens will be brought closer to deci-
sion making on questions of criminal procedure law. Moreover, in determin-
ing whether a goal pursued within criminal procedure is ‘better achieved’ at
Union level, side effects regarding, in particular, democratic participation
and human rights related issues (effective defence) must be taken into con-
sideration. If the proposed Union legislation, for instance, considerably
weakens the position of the defence—and if this weakness cannot be com-
pensated at the Member State level—the goal is not ‘better achieved’ at
Union level. The test of subsidiarity should be applied separately in every
single case, i.e. in relation to every instrument and each part of that instru-
ment. Legislative measures must be thoroughly justified in accordance with
the protocol on subsidiarity (Protocol no. 2 to the Lisbon Treaty); the
national parliaments must be involved as provided for therein. In accordance
with the requirements of good governance, the proposition of a legal instru-
ment relating to criminal procedure law must always be preceded by an

extensive evaluation (in the sense of a prior subsidiarity test) weighing all
circumstances and taking into account all alternative courses of action. A
merely formalistic affirmation of the subsidiarity requirements is not suffi-
cient under any circumstances”.
5. First, the EU passed Council Framework Decision 2008/977/JHA, of 27
November 2008, on the protection of personal data processed in the frame-
work of police and judicial cooperation in criminal matters. Following the
enactment of the General Data Protection Regulation, this Framework
Decision was replaced by Directive (EU) 2016/680 of the European
Parliament and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data by competent author-
ities for the purposes of the prevention, investigation, detection, or prosecu-
tion of criminal offences or the execution of criminal penalties, and on the
free movement of such data, and repealing Council Framework Decision
2008/977/JHA (OJ L 119, 4.5.2016, L 119/89).
6. Directive 2006/24/EC of the European Parliament and of the Council of
15 March 2006 on the retention of data generated or processed in connec-
tion with the provision of publicly available electronic communications ser-
vices or of public communications networks and amending Directive
2002/58/EC (OJ L 105, 13.4.2006).
7. In fact, shockingly, Directive 2016/680 has surprisingly little detail com-
pared to Directive 2016/681 on the use of passenger name record (PNR)
data for the prevention, detection, investigation, and prosecution of terror-
ist offences and serious crime. They provide for similar obligations—retain-
ing communication and passenger data—and they both interfere with the
right to privacy and information. However, regarding PNR, Directive
2016/681 lays down more stringent safeguards (Galán Muñoz 2015, p. 37
et seq).
8. Cf. Echle R. The Passive Personality Principle and the General Principle of Ne
Bis in Idem, Utrecht Law Review, Vol. 9, Issue 4, 56 et seq. As she claims in
her work, the most direct way to bring victims to the forefront would be to
apply the principle of passive personality. Nevertheless, this principle has
never had a good name. Under the classic Westphalian paradigm of judicial
cooperation law, it was considered an excessive interference in other sover-
eign states’ ius puniendi (the most aggressive basis for extraterritorial jurisdic-
tion). Right now, it is not even considered by the international treaties and
European provisions shaping networked judicial cooperation. As noted by
Echle, such extraterritoriality would increase the cases of ne bis in idem and
it would increase legal uncertainty for the perpetrator, who would s ometimes
be (i) unable to predict the victims’ nationality and (ii) unaware of the legal
framework applicable to his/her case.
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Index1
A Cooperation, judicial, 4, 20,

AIDP, 58 25, 33, 41n5, 69–76, 81,
Anti-Counterfeiting Trade Agreement 81n3, 93, 95, 96, 98, 99,
(ACTA), 28 105n5, 105n8
Anti-Doping Code, 62, 63 Corruption, 6, 19, 22, 25, 28, 29, 32,
Artificial intelligence, 8 37–40, 43n15, 44n23, 50–52,
55–58, 65n6, 72, 75, 77,
80, 99, 102
B Cybercrime, 7, 78, 100
Blacklisting, see Debarment
D
C Data mining, 8
Camden Assets Recovery Data protection law, 95–98
Inter-Agency Network Debarment, 26, 35–37, 51,
(CARIN), 20 87, 101
Collective actions, 54–57, 60, 65n6 Deliberative democracy, 6, 49, 58,
Compliance programs, 12n11, 39, 50, 87, 89–91
51, 54, 56, 90, 91, 93 Due diligence, 33, 52, 53, 60, 61,
Conflict of jurisdictions, 70, 95, 99–103 64n3, 65n5
1
Note: Page numbers followed by ‘n’ refer to notes.

Switzerland AG 2022
https://doi.org/10.1007/978-3-030-84831-6
110 INDEX
E I
Egmont Group, 20 Identity theft, 27, 43–44n21
ESMA, see European Securities and Illegal fishing, 77, 78
Markets Authority Immunity, 71, 80, 95
Eurojust, 20 Intelligence agencies, 7, 75, 76
European Asset Recovery Offices, 20 International criminal law, 3, 22,
European Federation of 43n19, 78
Pharmaceutical Industries and International Network for
Associations (EFPIA), 57 Environmental Compliance and
European Securities and Markets Enforcement (INECE), 21
Authority (ESMA), 34 International Organization of
Evaluation, 19, 31–33, 44n28, Securities Commissions (IOSCO),
49, 105n4 17, 20, 21, 34, 41n4
Extractive Industries Transparency International organizations, 1–2,
Initiative (EITI), 56 4, 6, 7, 17–40, 49, 50,
Extradition, 22, 71, 77, 81n1, 100 54, 58, 60, 63, 77, 80, 81,
86, 87, 90
International Scientific and
F Professional Advisory Council
FATF, see Financial Action Task Force (ISPAC), 42n15, 59
Financial Action Task Force (FATF), IOSCO, see International Organization
18–20, 22, 40n1, 90 of Securities Commissions
Financial and Economic Crime Team ISPAC, see International Scientific and
(FEC), 20 Professional Advisory Council
G L
Global constitutionalism, 2, 92 Labor
Global criminal justice, 7, 77, 87, 91 child labor, 53, 64n4
Global governance, 6, 8, 17, forced labor, 53
54, 77, 82n4, 88–91, 93, Legality principle, 86, 87
94, 102
Global law, 1, 2, 5, 8, 10n4,
11n8, 12n11, 24, 49, 51, M
54, 59, 76–78, 81, 88, Memoranda of Understanding
92, 99, 100 (MoUs), 21, 41n4
administrative global law, 2, 12n11 Modern Slavery, 53
Money laundering, 9, 18–20, 25, 29,
33, 40n1, 51, 65n6, 86,
H 90, 96, 102
Human trafficking, 22, 29, 53 Multilevel constitutionalism, 93, 94
INDEX 111
Multinational companies, 1 S
Mutual recognition, 38, 44n25, Sanctions
72, 74, 96 concept of, 33, 100
supranational sanctions, 2, 33–40
Security, 3, 6–9, 11n9, 11n10,
N 11–12n11, 20, 21, 25, 26, 34,
Name and shame, 58 35, 37, 41n4, 42n15, 61, 69,
Ne bis in idem, 70, 73, 85, 72–76, 91, 95–97
95, 99–103 Security Council, 7, 9, 10n4, 25–26,
Non-financial reporting, 53 30, 32, 35–38, 43n15, 43n16,
Non-inquiry, 71 44n22, 77, 79–81, 90, 92, 101
Non-state actors, 44n27, 49–61 Self-regulation, 6, 7, 27, 39, 50–52,
Nuremberg trials, 5, 11n8, 71, 73 54, 55, 57, 60, 63, 64n1
Smart sanctions, 9, 35
Soft law, 7, 18, 22, 24, 27, 30–32,
O 42n15, 44n26, 50, 52–54, 60,
Organized crime, 7, 22, 23, 25, 29, 77, 78, 87, 89, 104n1
32, 42n12, 43n15, 72, Soft power, 5, 10n7, 19, 41n4, 74
77, 80, 102 Sovereignty
relational sovereignty, 3–7, 17–19,
27, 33, 54, 56, 58, 69, 74
P westphalian sovereignty, 3–5, 18,
Partnering Against Corruption 33, 69, 70
Initiative (PACI), 56, Sports federations, 62–63
57, 65n6 Standard-setting organizations, 50
Peacemaking missions, 80 States
peacebuilding, 80 failed states, 11n9, 76, 77, 79–81
Piracy, 25, 76–78, 82n4 non-compliance states, 27, 78
Positive comity, 74 Stolen Asset Recovery Initiative
Profiling, 8, 97 (StAR), 19, 42n11
Public-private partnership, 6, 50, Subsidiarity principle, 87, 91–92, 104n4
56, 75, 77
T
R Technical legitimacy, 7, 18, 26,
Regulation, 1–3, 6, 9, 10n4, 31, 32, 50
18, 20, 21, 24, 27–30, 32, Territoriality principle, 81
34, 36, 43n17, 45n30, 49–54, Terrorism, 7, 9, 19, 20, 25, 26, 29,
58–63, 65n6, 73, 75, 78, 32, 33, 35, 37, 40n1, 42n12,
82n4, 85, 88–90, 93, 43n17, 44n27, 72, 90, 96, 99
96, 97 financing of terrorism, 9, 19, 33,
Risk assessment, 8, 9, 51, 95 37, 40n1, 43n17, 96
112 INDEX
Transgovernmental networks, 17–23, Universal justice, 70, 73

26–28, 30–33, 41n11, 43n20, UNODC, see United Nations Office
49, 50, 54, 58, 60, 74, 81n3, on Drugs and Crime
88–90, 95
Transnational crime, 5, 7, 8, 42n15,
72, 73, 76, 87, 91, 100, 102 W
World Bank (WB), 2, 19, 23, 37–40,
51, 55, 81, 85, 93, 99, 101
U World Economic Forum, 22, 56
United Nations Office on Drugs and World Trade Organization (WTO),
Crime (UNODC), 10n3, 25, 32, 21, 50, 59, 90
42n14, 44n24 WTO, see World Trade Organization

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Adán Nieto Martín

Global Criminal Law

ISBN 978-3-030-84830-9 ISBN 978-3-030-84831-6 (eBook)

© The Author(s), under exclusive licence to Springer Nature Switzerland AG 2022

1 On the Way to Stateless Criminal Law 1

2 The Ius Puniendi of International Organizations 17

3 Private Ius Puniendi 49

1.4 Standardization Bodies and Other Non-State

4 Territories, Sovereigns, and Ius Puniendi 69

5 Legitimacy and Safeguards 85

On the Way to Stateless Criminal Law

© The Author(s), under exclusive license to Springer Nature 1

organizations are mere instruments to serve their projects and interests.

2 The Forces of Change

rulers or from papal or imperial power (potestas legibus solutus). Westphalian

not involved in any treaty negotiations. National legislatures simply ratify

prioritizes dialogue over coercion, by exchanging ideas in international

international law (Raustiala 2002; Slaughter 2014a, b). Compliance in

Report of the Commission on Global Governance, Oxford, 1995. (http://

8. In this struggle, it is worth highlighting the works of the great interna-

administrative fines, the blacklisting system, anti-money laundering

Kelsen H., The Principle of Sovereign Equality of States as a Basis of International

Sieber U., Alternative Systems of Crime Control. National, Transnational, and

The Ius Puniendi of International

1 The Criminal Policy

© The Author(s), under exclusive license to Springer Nature 17

transgovernmental networks are involved in the implementation of many

been so successful partly because UN Security Council Resolution 1617

irregularities in securities markets. The Objectives and Principles of Security

Transgovernmental networks also have a central role in the fight against

2 International Organizations

treaties or conventions. Disregarding international criminal policy in mat-

2.1 The Increase of Regulatory Capacity

 nited Nations and the Security Council

strategy to ensure the effectiveness of international law provisions. The

network. This is a similar phenomenon to that of transgovernmental net-

international organizations. We assumed that harmonization mostly

The passing of international provisions and their subsequent effective-

interpretation of the said convention (Nieto Martin, 2012). Regulatory

The Council of Europe increases technical legitimacy through special-

to assist countries in fulfilling their obligations with regard to money laun-

network: the Basel Committee on Banking Supervision (BCBS), whose

The EU powers or competences and their specific status within interna-

being blacklisted triggers a set of sanctions, namely the freezing of assets,

 orld Bank Sanctions Systems

to probation or, as the WB puts it, there is a sanction of “debarment with

The WB must remain politically neutral, and holding companies liable

of international organizations. The Anti-Corruption Working Group is

of a national identification system. The true driver in the area of identity

29. Council Regulation (EC) No. 2532/98, of 23 November 1998, concern-

Muñoz de Morales M., ¿Transposición de obligaciones comunitarias o fuera de juego

Private Ius Puniendi

1 Non-State Actors

© The Author(s), under exclusive license to Springer Nature 49

of soft law instruments and in all kinds of standard-setting procedures.

At this point, we will focus on companies’ regulatory compliance sys-

by these instruments, multinational corporations conduct due diligence

self-enforcement or self-monitoring frameworks, privately managed by the

compliance report. In addition to this standard-setting activity, PACI

International Society for Criminology (ISC). These institutions interact

1.4 Standardization Bodies and Other Non-State Regulators

(regarding environmental matters Schaper 2009). It is chimerical to

1 On the Way to Stateless Criminal Law 1

2 The Ius Puniendi of International Organizations 17

3 Private Ius Puniendi 49

1.4 Standardization Bodies and Other Non-State

4 Territories, Sovereigns, and Ius Puniendi 69

5 Legitimacy and Safeguards 85

nited Nations and the Security Council

orld Bank Sanctions Systems