Bird's-Eye View and Worm's-Eye View: Towards a Defendant-Based Approach in Transnational Criminal Law
Transnational Legal Theory, 2015 Vol. 6, No. 1, 117–140
21 Pages Posted: 29 Jan 2016 Last revised: 14 Feb 2016
Date Written: March 29, 2015
While the classic approach to transnational law provides a valuable tool for identifying the legal frameworks governing transborder occurrences, it falls short of covering all relevant aspects of transnational criminal law (TCL). This article argues that criminal law – unlike other areas of law – is fundamentally a state-oriented concept, leading to unique problems when implemented across state borders, especially for the individual facing penal power. A theoretical concept of TCL must therefore not only map extensions of state powers from high above, but also look for the individual’s position in the possibly overlapping normative orders on the ground. The current predominant bird’s-eye view must be modified according to the worm's-eye view. In doing so, the specific features and resulting problems of TCL will emerge. From this modified point of view, a main challenge is the establishment of a globally recognized coordination scheme, which will protect the legal position of individuals – particularly defendants – affected by states exercising their ius puniendi across borders.
Keywords: transnational criminal law, defendant based-approach, general principles, ne bis in idem, jurisdiction in criminal matters; conflicts of jurisdiction; European criminal law
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