Global Criminal Law Postnational Criminal Justice in The Twenty First Century 1St Edition Adan Nieto Martin Full Chapter

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

Century 1st Edition Adán Nieto Martín
Visit to download the full and correct content document:
https://ebookmass.com/product/global-criminal-law-postnational-criminal-justice-in-the
-twenty-first-century-1st-edition-adan-nieto-martin/
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

This work is subject to copyright. All rights are solely and exclusively licensed by the
Publisher, whether the whole or part of the material is concerned, specifically the rights of
reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in
any other physical way, and transmission or information storage and retrieval, electronic
adaptation, computer software, or by similar or dissimilar methodology now known or here-
after developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are
exempt from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information
in this book are believed to be true and accurate at the date of publication. Neither the
publisher nor the authors or the editors give a warranty, expressed or implied, with respect
to the material contained herein or for any errors or omissions that may have been made.
The publisher remains neutral with regard to jurisdictional claims in published maps and
institutional affiliations.
This Palgrave Macmillan imprint is published by the registered company Springer Nature
Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
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.
Bibliography
Abad Quintanal G., El concepto de seguridad: su transformación, ComillasJournal
of International Relations, no. 4, 2015.
Arroyo Jiménez L./Nieto Martín A., Autorregulación y sanciones, Aranzadi, 2nd
ed., 2015.
Ambos K., Punishment without a Sovereign? The Ius Puniendi Issue of
International Criminal Law: A First Contribution towards a Consistent Theory
of International Criminal Law, Oxford Journal of Legal Studies, 33, nº 2, 2013.
Andreas P., Illicit Globalisation: Myths and Misconceptions, p. 45 et seq.
Bachmaier Winter L., Información de inteligencia y proceso penal, in Bachmaier
Winter L. (coord), Terrorismo, proceso penal y derechos fundamentales, Marcial
Pons, 2012.
Badie B., La fin des territoires. Essai sur le désordre international et su l’utilité sociale
du respect, Fayard, 1995.
Bamberger K., Regulation as delegation: private firms, decision making, and
accountability, Duke Law Journal, Vol. 56, 2006
Bassiouni Ch., In Memoriam. Gerhard O.W. Mueller, Revue internationale de
droit pénal 2006/1–2 (Vol. 77).
Bassiouni Ch./Vetere E., Towards Understanding Organized Crime and Its
Transnational Manifestations, in Bassiouni Ch. and Vetere E. (eds), Organized
Crime: A Compilation of UN Documents, 1975–1998 (1998) 31.
Boister N., Transnational criminal Law, European Journal of International Law,
Volume 14, Issue 5, 1 November 2003.
Caeiro P., Fundamento, conteúdo e limites da jurisdiçao penal do estado, Wolters
Kluwer-Coimbra Editores, 2010.
Commission on Global Governance, Our Global Neighbourhood: The Report of the
Commission on Global Governance, Oxford, 1995. (http://www.gdrc.
org/u-gov/global-neighbourhood/).
De Bellis M., Las redes reguladoras transnacionales diez años después de la crisis:
caracteres y problemas, in Arroyo Jimenez L. and Martin Delgado I. and Meix
Cereda P. (dirs.), Derecho público global. Fundamentosactores y procesos.
Iustel. 2020.
Chayes A./Chayes A., The New Sovereignty: Compliance with International
Regulatory Agreements, Harvard University Press, 1995.
González Coussac J. L., El papel de los servicios de inteligencia en la investigación
desde la perspectiva de un Derecho penal global, in Nieto Martin A. and Garcia
Moreno B. (dirs)., Ius puniendi y global law. Hacia un Derecho penal sin
estado. Tirant lo Blanch. 2019.
González Coussac J. L/Fernández Flores F., Una metodología para el análisis de
las amenazas de seguridad, la evaluación de sus respuestas y su impacto sobre
derechos fundamentales, Cuadernos de Estrategia, 188, 2017.
Donahue J.D./Zeckhauser, Public Private Collaboration, in Moran M./Rein M./
Goodin R., The Oxford Handbook of Public Policy, Oxford University
Press, 2006.
Domingo R., The New Global Law, Cambridge University Press, 2010.
Felsen D./Kalaitzides, A Historical Overview of Transnational Crime, in
Reichel P. (ed), Handbook of Transnational Crime & Justice, Sage
Publications, 2005.
Ferrajoli L., Más allá de la ciudadanía y soberanía: un constitucionalismo global,
Isonomía, no. 9, 1998.
Fouchard I., De l’utilité de la distinction entre les crimes supranationaux et trans-
nationaux: traduire les processus d’incrimination complexes alliant droit inter-
national et droits pénaux internes, RIEJ, 2013, 71.
García de la Galana B., Del Whistleblower al alertador. La regulación europea de
los canales de denuncia. Tirant lo Blanch. 2019.
Grossi P., La primera lección de Derecho, Marcial Pons, Barcelona/Madrid, 2006.
Klitgaard R., Public Private collaboration and Corruption, in Pieth (ed.), Collective
Action: Innovative Strategies to Prevent Corruption, Dike, 2012.
Laboire M., La evolución del concepto de seguridad, Documento marco del IEE,
no. 5, 2011.
Lauterpacht H., The Grotian Tradition in International Law, British Yearbook of
International Law, no. 23, Vol. 1, 1946.
Mitsilegas V., EU Criminal Law after Lisbon, Hart, 2016,
Darnaculleta i Gardella M. M., El Derecho Administrativo Global ¿Un nuevo con-
cepto clave del Derecho Administrativo?,RAP, no. 199, 2016.
Darnaculleta i Gardella M. M., ¿Qué es el derecho global?: Una visión desde el Derecho
público. From the perspective of international law, in Nieto Martin A. and
Garcia Moreno B. (dirs)., Iuspuniendi y global law. Hacia un Derecho penal sin
estado. Tirant lo Blanch. 2019.
Karstedt S./Nelken D., Crime and globalization, Ashgate, 2013.
14 A. NIETO MARTÍN
Kelsen H., The Principle of Sovereign Equality of States as a Basis of International

Law, Yale Law Journal, Vol. 53, 1944.
Krisch, N. Beyond Constitutionalism. The Pluralist Structure of Postnational Law,
Oxford University Press, 2010.
Maroto Calatayud M./Nieto Martin A., Redes sociales en internet y `data mining’
en la prospección e investigación de comportamientos delictivos, in Rallo Lombarte
A./Martínez Martínez R., Derecho y Redes Sociales, Civitas, 2010
Meyer F., Strafrechtsgenese in Internationalen Organisationen, Nomos, 2012.
Miró F., Inteligencia artificial y justicia penal: más allá de los resultados lesivos
causados por robots, Revista de Derecho Penal y Criminología, 2 Epoca,
nº 20, 2020.
Mitsilegas V./Alldridge P./Cheliotis L., Globalisation, Criminal Law and
Criminal Justice, Hart, 2015.
Mitsilegas V./Monar J./Rees W., The European Union and Internal Security:
Guardian of the People?, Palgrave, 2003.
Naylor T., From Cold War to Crime war: the search for a new “national security
threat”, Transnational Organized Crime, no. 4, 1995.
Nye M., Bound to Lead: The Changing Nature of American Power, New York Basic
Books, 1990.
Nieto Martín A., ¿Americanización o europeización del derecho penal económico?
Revista Penal. Vol. 19. Enero 2007.
Ortega Carcelén M. Derecho global. Derecho internacional público en la era global,
Tecnos, Madrid, 2014.
Ortega Carcelén M., Del Derecho internacional público al Derecho global, in Nieto
Martin A. and Garcia Moreno B. (dirs)., Ius puniendi y global law. Hacia un
Derecho penal sin estado. Tirant lo Blanch. 2019.
Parry J., WhatistheGrotianTradition in International Law?, U. Pa. J. Int’l L.,
2014, Vol 35 (2).
Pérez Cepeda A.I., La seguridad como fundamento de la deriva del Derecho penal
posmoderno, Iustel, 2007.
Raine P./Cilluffo F.J., Global Organized Crime: The New Empire of Evil, Center
for Strategic and International Studies Washington, 1994.
Raustiala K., The Architecture of International Cooperation. Transnational
Networks and the Future of International Law, Virginia Journal of International
Law 43 (2002).
Reichel P. (ed.), Handbook for Transnational Crime & Justice, Sage
Publications, 2005.
Romeo Casabona, C.M., Riesgo, procedimientos actuariales basados en Inteligencia
Artificial y medidas de seguridad, in Revista Penal, no. 42. 2018.
Ruggie J., Territoriality and Beyond: Problematizing Modernity in International
Relations, International Organization, Vol. 47, No. 1 (Winter, 1993).
Sands P., East West Street, Weidenfeld & Nicolson, 2017.
Sieber U., Alternative Systems of Crime Control. National, Transnational, and

International Dimensions, in U. Sieber/V. Mitsilegas/C. Mylonopoulos/
E. Billis/N. Knust (eds.): Alternative Systems of Crime Control. National,
Transnational, and International Dimensions, Berlin, Duncker &
Humblot, 2018.
Slaughter A.M., A New World Order, Princeton University Press, 2014a, p. 8 et seq.
Sieber U., Legal Order in a Global World. The Development of a Fragmented System
of National, International, and Private Norms, in von Bogdandy
A./R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume
14, 2010, p. 1–49
Smith C./Zhang S./Barberet R., Routledge Handbook of International
Criminology, Routledge, 2011.
Slaughter A.M., Sovereignty and Power in a Networked World Order, Stanford
Journal of International Law, 40, 2004.
Slaughter A. M., A New World Order, Princeton University Press, 2014b
Teubner G., Global Law without State, 1997.
United Nations Office on Drugs and Crime (UNODC), The Globalization of
Crime. A TransnationalOrganized Crime ThreatAssessment. 2010.
Vervaele J., Medidas de investigación de carácter proactivo y uso de información de
inteligencia en el proceso penal, en Pérez Gil J., El proceso penal en la sociedad
de la información, La Ley, 2012.
Zagaris B., International White Collar Crime, Cases and Materials, Cambridge
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,
© The Author(s), under exclusive license to Springer Nature 17

Switzerland AG 2022
A. Nieto Martín, Global Criminal Law,
https://doi.org/10.1007/978-3-030-84831-6_2
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 juris- dictions. 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
Another random document with
no related content on Scribd:
been, as Mr. Strahan asserts, a sot, a time-server, a toad-eater, a
bad official and a worse friend; but he managed to give a different
impression. Addison’s friends and neighbours found him a modest,
honourable, sweet-tempered gentleman; and Steele, whom he had
affronted, wrote these generous words: “You can seldom get him to
the tavern; but when once he is arrived to his pint, and begins to look
about him, you admire a thousand things in him which before lay
buried.”
This seems to me a singularly pleasant thing to say about
anybody. Were I coveting praise, this is the form I’d like the praise to
take.
The pressure of disparagement, which is one result of the cooling
of our blood after the fever-heat of war, is lowering our enthusiasms,
thinning our sympathies, and giving us nothing very dazzling in the
way of enlightenment. Americans are less critical than Englishmen,
who so value their birthright of free speech that censure of public
men has become a habit, a game of hazard (pulling planks out of the
ship of state), at which long practice has made them perfect. “The
editor of the ‘Morning Post,’” observed Mr. Maurice Hewlett wearily,
“begins his day by wondering whom he shall denounce”; and
opposing editors, as nimble at the fray, match outcry against outcry,
and malice against malignity.
I doubt if any other than an Englishman could have written “The
Mirrors of Downing Street,” and I am sure that, were an American
able to write such a book (which is problematic), it would never occur
to him to think of it, or to brag of it, as a duty. The public actions of
public men are open to discussion; but Mr. Balfour’s personal
selfishness, his parsimony, his indifference to his domestics, are not
matters of general moment. To gossip about these things is to gossip
with tradesmen and servants. To deny to Lord Kitchener “greatness
of mind, greatness of character, and greatness of heart,” is harsh
speaking of the dead; but to tell a gaping world that the woman
“whom he loved hungrily and doggedly, and to whom he proposed
several times, could never bring herself to marry him,” is a
personality which “Town Topics” would scorn. “The Mirrors of
Downing Street” aspired to a moral purpose; but taste is the
guardian of morality. Its delicate and severe dictates define the terms
upon which we may improve the world at the expense of our
neighbour’s character.
The sneaking kindness recommended by Mr. Stevenson is much
harder to come by than the “raptures of moral indignation,” of which
he heard more than he wanted, and which are reverberating through
the world to-day. The pages of history are heavy with moral
indignation. We teach it in our schools, and there are historians like
Macaulay who thunder it rapturously, with never a moment of
misgiving. But here and there, as we step apprehensively into
historic bypaths, we are cheered by patches of sunshine, straight
glimpses into truths which put a more credible, because a more
merciful, construction upon men’s actions, and lighten our burden of
dispraise.
I have often wondered why, with Philippe de Commines as an
avenue of approach, all writers except Scott should deal with Louis
the Eleventh as with a moral monstrosity. Commines is no apologist.
He has a natural desire to speak well of his master; but he reviews
every side of Louis’s character with dispassionate sincerity.
First, as a Catholic: “The king was very liberal to the Church, and,
in some respects, more so than was necessary, for he robbed the
poor to give to the rich. But in this world no one can arrive at
perfection.”
Next, as a husband: “As for ladies, he never meddled with them in
my time; for when I came to his court he lost a son, at whose death
he was greatly afflicted; and he made a vow to God in my presence
never to have intercourse with any other woman than the queen.
And though this was no more than he was bound to do by the
canons of the Church, yet it was much that he should have such self-
command as to persevere firmly in his resolution, considering that
the queen (though an excellent lady in other respects) was not a
princess in whom a man could take any great delight.”
Finally, as a ruler: “The king was naturally kind and indulgent to
persons of mean estate, and hostile to all great men who had no
need of him.... But this I say boldly in his commendation, that in my
whole life I never knew any man so wise in his misfortunes.”
To be brave in misfortune is to be worthy of manhood; to be wise
in misfortune is to conquer fate. We cannot easily or advantageously
regard Louis with affection; but when Commines epitomizes history
in an ejaculation, “Our good master, Louis, whom God pardon!” it
rests our souls to say, “Amen!”
We cannot easily love Swift. The great “professional hater”
frightens us out of the timid regard which we should like—in honour
of English literature—to cherish for his memory. But there is a noble
sentence of Thackeray’s which, if it does not soften our hearts,
cannot fail to clarify our minds, to free us from the stupid, clogging
misapprehension which we confuse with moral distaste. “Through
the storms and tempests of his [Swift’s] furious mind the stars of
religion and love break out in the blue, shining serenely, though
hidden by the driving clouds and maddening hurricane of his life.”
One clear and penetrating note (“Childe Roland to the Dark Tower
came”) is worth much careful auditing of accounts.
The picture of John Wilkes drawn by Sir George Otto Trevelyan in
his “Early History of Charles James Fox,” and the picture of Aaron
Burr drawn by Mr. Albert J. Beveridge in his “Life of John Marshall,”
are happy illustrations of unpopular subjects treated with illuminating
kindness. Wilkes was a demagogue and Burr a trouble-maker (the
terms are not necessarily synonymous), and neither of them is a
man whose history is widely or accurately known. Both historians are
swayed by their political passions. An historian without political
passions is as rare as a wasp without a sting. To Trevelyan all
Conservatives were in fault, and all Liberals in the right. Opposition
to George the Third is the acid test he applies to separate gold from
dross. Mr. Beveridge regards the Federalists as the strength, and the
Republicans as the weakness, of the young nation. Thomas
Jefferson is his test, and a man hated and hounded by Jefferson
necessarily wins his support.
Nevertheless, Wilkes and Burr are presented to us by their
sympathizers in a cold north light which softens and conceals
nothing. Men of positive quality, they look best when clearly seen.
“Research and fact are ever in collision with fancy and legend,”
observes Mr. Beveridge soberly; and it is to research and fact that he
trusts to rescue his accomplished filibuster from those unproved
charges which live by virtue of their vagueness. Writers of American
school histories, remembering the duty of moral indignation, have
played havoc with the reputation of Aaron Burr; and American
school-children, if they know him at all, know him as a duellist and a
traitor. They are sure about the duel (it was one of the few facts
firmly established in my own mind after a severe struggle with
American history); but concerning the treason, they are at least as ill-
informed as their elders.
British children do better, perhaps, with John Wilkes. Little
Londoners can gaze at the obelisk which commemorates his
mayoralty, and think of him as a catless Whittington. The slogan
“Wilkes and Liberty” has an attractive ring to all who are not of
Madame Roland’s way of thinking. No man ever gave his partisans
more to defend, or his opponents better chances to attack; and
friends and foes rose repeatedly and fervently to their opportunities.
A century later, Sir George Trevelyan, a friend well worth the having,
reviews the case with wise sincerity, undaunted confidence, a careful
art in the arrangement of his high lights, and a niceness of touch
which wins halfway all readers who love the English language.
Wilkes was as naturally and inevitably in debt as was William
Godwin, and Wilkes’s debts were as naturally and inevitably paid by
some one else as were Godwin’s; but when Trevelyan alludes softly
to his “unambitious standard of solvency,” this sordid detail becomes
unexpectedly pleasurable. So easily are transgressions pardoned, if
they provoke the shadow of a smile.
Lord Rosebery’s “Napoleon: the Last Phase” is a work nobly
conceived and admirably executed; but its impelling motive is an
austere resolve to make what amends a single Englishman can
make for an ungenerous episode in English history. Its sympathy for
a fallen foe bears no likeness to the sympathy which impelled
Théodore de Banville, broken in health and hope by the siege of
Paris, to write a lyric in memory of a young Prussian officer, a mere
boy, who was found dead on the field, with a blood-stained volume of
Pindar in his tunic. Lord Rosebery’s book is written with a proud
sadness, a stern indignation, eminently fitted to its subject; but he is
not so much kind as just. Napoleon is too vast a figure to be
approached with benevolence. It is true, as Mr. Wells asserts, that,
had he been unselfish and conscientious, he would never have
conquered Europe; but only Mr. Wells is prepared to say that a lack
of these qualities won him renown. He shares the lack with Wilhelm
the Second, who has had neither an Austerlitz nor a Waterloo.
There is a wide assortment of unpopular characters whose
company it would be very instructive to keep. They belong to all
ages, countries and creeds. Spain alone offers us three splendid
examples—the Duke of Alva, Cardinal Ximenez, and Philip the
Second. Alva, like the Corsair, possessed one virtue, which was a
more valuable virtue than the Corsair’s, but brings him in less credit,
because the object of his unswerving loyalty and devotion was not a
guileless lady, but a sovereign, less popular, if possible, than himself.
Cardinal Ximenez, soldier, statesman, scholar, priest, ascetic, author
and educator, was also Grand Inquisitor, and this fact alone seems
to linger in the minds of men. That, for his day, he was a moderate,
avails him little. That he made a point of protecting scholars and
professors from the pernicious interference of the Inquisition ought to
avail him a great deal. It might were it better known. There is a play
of Sardou’s in which he is represented as concentrating all the
deadly powers of his office against the knowledge which he most
esteemed. This is the way the drama educates.
And Philip? It would be a big piece of work to win for Philip even a
partial recognition of his moderate merits. The hand of history has
dealt heavily with him, and romance has preyed upon his vitals. In
fact, history and romance are undistinguishable when they give free
play to the moral indignation he inspires. It is not enough to accuse
him of the murder of the son whom he hated (though not more
heartily than George the Second hated the Prince of Wales): they
would have us understand that he probably poisoned the brother
whom he loved. “Don John’s ambitions had become troublesome,
and he ceased to live at an opportune moment for Philip’s peace of
mind,” is the fashion in which Gayarré insinuates his suspicions; and
Gayarré’s narrative—very popular in my youth—was recommended
to the American public by Bancroft, who, I am convinced, never read
it. Had he penetrated to the eleventh page, where Philip is alluded to
as the Christian Tiberius, or to the twentieth, where he is compared
to an Indian idol, he would have known that, whatever the book
might be, it was not history, and that, as an historian, it ill became
him to tell innocent Americans to read it.
But how were they to be better informed? Motley will not even
allow that Philip’s fanatical devotion to his Church was a sincere
devotion. He accuses him of hypocrisy, which is like accusing
Cromwell of levity, or Burke of Jacobinism. Prescott has a fashion of
turning the King’s few amiabilities, as, for example, his tenderness
for his third wife, Isabella of France, into a suggestion of reproach.
“Well would it be for the memory of Philip, could the historian find no
heavier sin to lay to his charge than his treatment of Isabella.” Well
would it be for all of us, could the recording angel lay no heavier
charge to our account than our legitimate affections. The Prince of
Orange, it is true, charged Philip with murdering both wife and son;
but that was merely a political argument. He would as soon have
charged him with the murder of his father, had the Emperor not been
safely isolated at Yuste; and Philip, in return, banned the Prince of
Orange—a brave and wise ruler—as “an enemy of the human race.”
Twenty-five years ago, an Englishman who was by nature
distrustful of popular verdicts, and who had made careful studies of
certain epochs of Spanish history, ventured to paint Philip in fresh
colours. Mr. Martin Hume’s monograph shows us a cultivated
gentleman, with a correct taste in architecture and art, sober,
abstemious, kind to petitioners, loyal and affectionate to his friends,
generous to his soldiers and sailors; a man beloved by his own
household, and reverenced by his subjects, to whom he brought
nothing but misfortune. The book makes melancholy reading,
because Philip’s political sins were also political blunders; his mad
intolerance was a distortion, rather than a rejection, of conscience;
and his inconceivable rigidity left him helpless to face the essential
readjustments of life. “I could not do otherwise than I have done,” he
said with piercing sincerity, “though the world should fall in ruins
around me.”
Now what befell Mr. Hume who wrote history in this fashion, with
no more liking for Philip than for Elizabeth or the Prince of Orange,
but with a natural desire to get within the purlieus of truth? Certain
empty honours were conferred upon him: a degree from Cambridge,
membership in a few societies, the privilege of having some letters
printed after his name. But the University of Glasgow and the
University of Liverpool stoutly refused to give him the chairs of
history and Spanish. He might know more than most men on these
subjects; but they did not want their students exposed to new
impressions. The good old way for them. Mr. Hume, being a reader,
may have recalled in bitterness of spirit the words of the acute and
unemotional Sully, who had scant regard for Catholicism (though the
Huguenots tried him sorely), and none at all for Spain; but who said,
in his balanced, impersonal way, that Philip’s finer qualities, his
patience, piety, fortitude and single-mindedness, were all alike “lost
on the vulgar.”
Lucrezia Borgia is less available for our purpose, because the
imaginary Lucrezia, though not precisely beloved, is more popular in
her way than the real Lucrezia could ever hope to be. “In the matter
of pleasantness,” says Lucian, “truth is far surpassed by falsehood”;
and never has it been more agreeably overshadowed than in this
fragment of Italian history. We really could not bear to lose the
Lucrezia of romance. She has done fatigue duty along every line of
iniquity. She has specialized in all of the seven deadly sins. On
Rossetti’s canvas, in Donizetti’s opera, in Victor Hugo’s play, in
countless poems and stories and novels, she has erred exhaustively
for our entertainment. The image of an attractive young woman
poisoning her supper guests is one which the world will not lightly let
go.
And what is offered in return? Only the dull statements of people
who chanced to know the lady, and who considered her a model wife
and duchess, a little over-anxious about the education of her
numerous children, but kind to the poor, generous to artists, and
pitiful to Jews. “She is graceful, modest, lovable, decorous and
devout,” wrote Johannes Lucas from Rome to Ercole, the old Duke
of Ferrara. “She is beautiful and good, gentle and amiable,” echoed
the Chevalier Bayard years later. Were we less avid for thrills, we
might like to think of this young creature, snatched at twenty-one
from the maelstrom of Rome, where she had been a pawn in the
game of politics, and placed in a secure and splendid home. The
Lucrezia of romance would have found the court of Ferrara
intolerably dull. The Lucrezia of history took to dullness as a duck to
water. She was a sensible, rather than a brilliant woman, fully alive to
the duties and dignities of her position, and well aware that
respectability is a strong card to play in a vastly disreputable world.
There was a time when Robespierre and Marat made a high bid
for unpopularity. Even those who clearly understood the
rehabilitation of man in the French Revolution found little to say for
its chosen instruments, whose purposes were high, but whose
methods were open to reproach. Of late, however, a certain
weariness has been observable in men’s minds when these
reformers are in question, a reluctance to expand with any emotion
where they are concerned. M. Lauzanne is, indeed, by way of
thinking that the elemental Clemenceau closely resembles the
elemental Robespierre; but this is not a serious valuation; it is letting
picturesqueness run away with reason—a habit incidental to
editorship.
The thoroughly modern point of view is that Robespierre and
Marat were ineffective; not without ability in their respective lines, but
unfitted for the parts they played. Marat’s turn of mind was scientific
(our own Benjamin Franklin found him full of promise). Robespierre’s
turn of mind was legal; he would have made an acute and successful
lawyer. The Revolution came along and ruined both these lives, for
which we are expected to be sorry. M. Lauzanne does not go so far
as to say that the Great War ruined Clemenceau’s life. The “Tiger”
was seventy-three when the Germans marched into Belgium. Had
he been content to spend all his years teaching in a girls’ school, he
might (though I am none too sure of it) have been a gentler and a
better man. But France was surely worth the price he paid. A lifeboat
is not expected to have the graceful lines of a gondola.
“Almost everybody,” says Stevenson, “can understand and
sympathize with an admiral, or a prize-fighter”; which genial
sentiment is less contagious now than when it was uttered, thirty
years ago. A new type of admiral has presented itself to the troubled
consciousness of men, a type unknown to Nelson, unsuspected by
Farragut, unsung by Newbolt. In robbing the word of its ancient glory,
Tirpitz has robbed us of an emotion we can ill-afford to lose. “The
traditions of sailors,” says Mr. Shane Leslie, “have been untouched
by the lowering of ideals which has invaded every other class and
profession.” The truth of his words was brought home to readers by
the behaviour of the British merchant marine, peaceful, poorly paid
men, who in the years of peril went out unflinchingly, and as a matter
of course, to meet “their duty and their death.” Many and varied are
the transgressions of seafaring men; but we have hitherto been able
to believe them sound in their nobler parts. We should like to cherish
this simple faith, and, though alienated from prize-fighters by the
narrowness of our civic and social code, to retain our sympathy for
admirals. It cannot be that their fair fame will be forever smirched by
the tactics of a man who ruined the government he served.
The function of criticism is to clear our mental horizon, to get us
within close range of the criticized. It recognizes moral as well as
intellectual issues; but it differentiates them. When Emerson said,
“Goethe can never be dear to men. His is not even the devotion to
pure truth, but to truth for the sake of culture,” he implied that truth,
besides being a better thing than culture, was also a more lovable
thing, which is not the case. It takes temerity to love Goethe; but
there are always men—young, keen, speculative, beauty-loving men
—to whom he is inexpressibly dear because of the vistas he opens,
the thoughts he releases, the “inward freedom” which is all he
claimed to give. It takes no less temerity to love Emerson, and he
meant that it should be so, that we should climb high to reach him.
He is not lovable as Lamb is lovable, and he would not have wanted
to be. A man who all his life repelled unwelcome intimacies had no
desire to surrender his memory to the affection of every idle reader.
It is such a sure thing to appeal from intelligence to the moral
sense, from the trouble involved in understanding to the ease with
which judgment is passed, that critics may be pardoned their
frequent misapprehensions. Problems of conduct are just as
puzzling as problems of intellect. That is why Mr. Stevenson
pronounced a sneaking kindness to be “instructive.” He offered it as
a road to knowledge rather than as a means of enjoyment. Not that
he was unaware of the pleasures which follow in its wake. He knew
the world up and down well enough to be thankful that he had never
lost his taste for bad company.
The Divineness of Discontent
When a distinguished Oxford student told Americans, through the
distinguished medium of Harvard College, that they were “speeding
with invincible optimism down the road to destruction,” they paid him
the formal compliment of listening to, and commenting upon, his
words. They did not go so far as to be disturbed by them, because it
is the nature of men to remain unmoved by prophecies. Only the
Greek chorus—or its leader—paid any heed to Cassandra; and the
folly of Edgar Poe in accepting without demur the reiterated
statement of his raven is apparent to all readers of a much-read
poem. The world has been speeding through the centuries to
destruction, and the end is still remote. Nevertheless, as it is
assuredly not speeding to perfection, the word that chills our
irrational content may do us some small service. It is never believed,
and it is soon forgotten; but for a time it gives us food for thought.
Any one born as long ago as I was must remember that the virtue
most deeply inculcated in our nurseries was content. It had no
spiritual basis to lend it dignity and grace, but was of a Victorian
smugness; though, indeed, it was not Victorian at all, but an
inheritance from those late Georgian days which were the smuggest
known to fame. It was a survival from Hannah More and Jane Taylor,
ladies dissimilar in most respects, but with an equal gift for restricting
the horizon of youth. I don’t remember who wrote the popular story
of the “Discontented Cat” that lived in a cottage on bread and milk
and mice, and that made itself unhappy because a wealthy cat of its
acquaintance was given buttered crumpets for breakfast; but either
Jane Taylor or her sister Ann was responsible for the “Discontented
Pendulum,” which grew tired of ticking in the dark, and, being
reminded that it had a window to look through, retorted very sensibly
that there was no use having a window, if it could not stop a second
to look through it.
The nursery theory of content was built up on the presumption that
you were the favoured child of fortune—or of God—while other, and
no less worthy, children were objects of less kindly solicitude. Miss
Taylor’s “Little Ann” weeps because she sees richly clad ladies
stepping into a coach while she has to walk; whereupon her mother
points out to her a sick and ragged beggar child, whose
“naked feet bleed on the stones,”
and with enviable hardness of heart bids her take comfort in the
sight:
“This poor little beggar is hungry and cold,

No father nor mother has she;
And while you can daily such objects behold,
You ought quite contented to be.”
Hannah More amplified this theory of content to fit all classes and
circumstances. She really did feel concern for her fellow creatures,
for the rural poor upon whom it was not the custom of Church or
State to waste sympathy or help. She refused to believe that British
labourers were “predestined to be ignorant and wicked”—which was
to her credit; but she did, apparently, believe that they were
predestined to be wretchedly poor, and that they should be content
with their poverty. She lived on the fat of the land, and left thirty
thousand pounds when she died; but she held that bare existence
was sufficient for a ploughman. She wrote twenty-four books, which
were twenty-four too many; but she told the ever-admiring
Wilberforce that she permitted “no writing for the poor.” She aspired
to guide the policies and the morals of England; but she was
perturbed by the thought that under-paid artisans should seek to be
“scholars and philosophers,” though they must have stood in more
need of philosophy than she did.
It was Ruskin who jolted his English readers, and some
Americans, out of the selfish complacency which is degenerate
content. It was he who harshly told England, then so prosperous and
powerful, that prosperity and power are not virtues, that they do not
indicate the sanction of the Almighty, or warrant their possessors in
assuming the moral leadership of the world. It was he who assured
the prim girlhood of my day that it was not the petted child of
Providence, and that it had no business to be contented because it
was better off than girlhood elsewhere. “Joy in nothing that
separates you, as by any strange favour, from your fellow creatures,
that exalts you through their degradation, exempts you from their toil,
or indulges you in times of their distress.”
This was a new voice falling upon the attentive ears of youth—a
fresh challenge to its native and impetuous generosity. Perhaps the
beggar’s bare feet were not a legitimate incentive to enjoyment of
our own neat shoes and stockings. Perhaps it was a sick world we
lived in, and the beggar was a symptom of disease. Perhaps when
Emerson (we read Emerson and Carlyle as well as Ruskin) defined
discontent as an infirmity of the will, he was thinking of personal and
petty discontent, as with one’s breakfast or the weather; not with the
discontent which we never dared to call divine, but which we dimly
perceived to have in it some noble attribute of grace. That the bare
existence of a moral law should so exalt a spirit that neither sin nor
sorrow could subdue its gladness was a profundity which the
immature mind could not be expected to grasp.
Time and circumstance lent themselves with extraordinary
graciousness to Emerson’s invincible optimism. It was easier to be a
transcendental philosopher, and much easier to cherish a noble and
a sweet content, before the laying of the Atlantic cable. Emerson
was over sixty when this event took place, and, while he lived, the
wires were used with commendable economy. The morning
newspaper did not bring him a detailed account of the latest Turkish
massacre. The morning mail did not bring him photographs of
starving Russian children. His temperamental composure met with
little to derange it. He abhorred slavery; but until Lincoln forced the
issue, he seldom bent his mind to its consideration. He loved
“potential America”; but he had a happy faculty of disregarding public
affairs. Passionate partisanship, which is the basis of so much
satisfaction and discontent, was alien to his soul. He loved mankind,
but not men; and his avoidance of intimacies saved him much wear
and tear. Mr. Brownell says that he did not care enough about his
friends to discriminate between them, which was the reason he
estimated Alcott so highly.
This immense power of withdrawal, this concentration upon the
things of the spirit, made possible Emerson’s intellectual life. He may
have been, as Santayana says, “impervious to the evidence of evil”;
yet there breaks from his heart an occasional sigh over the low ebb
of the world’s virtue, or an entirely human admission that the hopes
of the morning are followed by the ennui of noon. Sustained by the
supremacy of the moral law, and by a profound and majestic belief in
the invincible justice, the “loaded dice” of God, he sums up in careful
words his modest faith in man: “Hours of sanity and consideration
are always arriving to communities as to individuals, when the truth
is seen, and the martyrs are justified.” Perhaps martyrs foresee the
dawning of this day or ever they come to die; but to those who stand
by and witness their martyrdom, the night seems dark and long.
There is a species of discontent which is more fervently optimistic
than all the cheerfulness the world can boast. It is the discontent of
the passionate and unpractical reformer, who believes, as Shelley
believed, in the perfectibility of the human species, and who thinks,
as Shelley thought, that there is a remedy for every disease of
civilization. To the poet’s dreaming eyes the cure was simple and
sure. Destruction implied for him an automatic reconstruction, a
miraculous survival and rebirth. Uncrown the king, and some noble
prophet or philosopher will guide—not rule—the people. Unfrock the
priest, and the erstwhile congregation will perfect itself in the practice
of virtue. Take the arms from the soldier and the policeman, the cap
and gown from the college president, authority from the judge, and
control from the father. The nations will then be peaceful, the mobs
orderly, the students studious, the criminals virtuous, the children
well-behaved. An indifferent acquaintance with sociology, and a
comprehensive ignorance of biology, made possible these pleasing
illusions. Nor did it occur to Shelley that many men, his equals in
disinterestedness and his superiors in self-restraint, would have
found his reconstructed world an eminently undesirable dwelling-
place.
Two counsels to content stand bravely out from the mass of
contradictory admonitions with which the world’s teachers have
bewildered us. Saint Paul, writing to the Philippians, says simply: “I
have learned, in whatsoever state I am, therewith to be content”; and
Marcus Aurelius, contemplating the mighty spectacle of life and
death, bids us pass serenely through our little space of time, and end
our journey in content. It is the meeting-point of objective and
subjective consciousness. The Apostle was having a hard time of it.
The things he disciplined himself to accept with content were
tangible things, of an admittedly disagreeable character—hunger
and thirst, stripes and imprisonment. They were not happening to
somebody else; they were happening to him. The Emperor, seeking
refuge from action in thought, steeled himself against the nobleness
of pity no less than against the weakness of complaint. John Stuart
Mill, who did not suffer from enervating softness of heart,
pronounced the wholesale killing of Christians in the reign of Marcus
Aurelius to be one of the world’s great tragedies. It was the outcome,
not only of imperial policy, but of sincere conviction. Therefore
historians have agreed to pass it lightly by. How can a man do better
than follow the dictates of his own conscience, or of his own
judgment, or of whatever directs the mighty ones of earth who make
laws instead of obeying them? But the immensity of pain, the long-
drawn agony involved in this protracted persecution might have
disturbed even a Stoic philosopher passing serenely—though not
harmlessly—through his little space of time.
This brings me to the consideration of one prolific source of
discontent, the habit we have acquired—and cannot let go—of
distressing ourselves over the daily progress of events. The classic
world, “innocent of any essential defeat,” was a pitiless world, too
clear-eyed for illusions, too intelligent for sedatives. The Greeks built
the structure of their lives upon an almost perfect understanding of
all that it offered and denied. The Romans, running an empire and
ruling a world, had much less time for thinking; yet Horace,
observant and acquiescent, undeceived and undisturbed, is the
friend of all the ages. It is not from him, or from any classic author,
that we learn to talk about the fret and fever of living. He would have
held such a phrase to be eminently ill-bred, and unworthy of man’s
estate.
The Middle Ages, immersed in heaving seas of trouble, and lifted
Heaven-ward by great spiritual emotions, had scant breathing-space
for the cultivation of nerves. Men endured life and enjoyed it. Their
endurance and their enjoyment were unimpaired by the violence of
their fellow men, or by the vision of an angry God. Cruelty, which we
cannot bear to read about, and a Hell, which we will not bear to think
about, failed signally to curb the zest with which they lived their days.
“How high the tide of human delight rose in the Middle Ages,” says
Mr. Chesterton significantly, “we know only by the colossal walls they
built to keep it within bounds.” There is no reason to suppose that
Dante, whose fervid faith compassed the redemption of mankind,
disliked his dream of Hell, or that it irked him to consign to it so many
eminent and agreeable people.
The Renaissance gave itself unreservedly to all the pleasures that
could be extracted from the business of living, though there was no
lack of troubles to damp its zeal. It is interesting and instructive to
read the history of a great Italian lady, typical of her day, Isabella
d’Este, Marchioness of Mantua. She was learned, adroit, able,
estimable, and mistress of herself though duchies fell. She danced
serenely at the ball given by the French King at Milan, after he had
ousted her brother-in-law, the Duke Ludovico, and sent him to die a
prisoner at Loches. When Cæsar Borgia snatched Urbino, she
improved the occasion by promptly begging from him two beautiful
statues which she had always coveted, and which had been the
most treasured possessions of Duke Guidobaldo, her relative, and
the husband of her dearest friend. A chilly heart had Isabella when
others came to grief, but a stout one when disaster faced her way. If
the men and women who lived through those highly coloured,
harshly governed days had fretted too persistently over the
misfortunes of others, or had spent their time questioning the moral
intelligibility of life, the Renaissance would have failed of its fruition,
and the world would be a less engaging place for us to live in now.
There is a discontent which is profoundly stimulating, and there is
a discontent which is more wearisome than complacency. Both
spring from a consciousness that the time is out of joint, and both
have a modern background of nerves. “The Education of Henry
Adams” and the “Diaries” of Wilfrid Scawen Blunt are cases in point.
Blunt’s quarrel was with his country, his world, his fellow creatures
and his God—a broad field of dissatisfaction, which was yet too
narrow to embrace himself. Nowhere does he give any token of even
a moderate self-distrust. Britain is an “engine of evil,” because his
party is out of power. “Americans” (in 1900) “are spending fifty
millions a year in slaughtering the Filipinos”—a crude estimate of
work and cost. “The Press is the most complete engine ever
invented for the concealment of historic truth.” “Patriotism is the
virtue of nations in decay.” “The whole white race is revelling openly
in violence, as though it had never pretended to be Christian. God’s
equal curse be on them all.”
“The whole white race,” be it observed. For a time Blunt dreamed
fond dreams of yellow and brown and black supremacy. Europe’s
civilization he esteemed a failure. Christianity had not come up to his
expectations. There remained the civilization of the East, and
Mohammedanism—an amended Mohammedanism, innocent of
sensuality and averse to bloodshed. Filled with this happy hope, the
Englishman set off from Cairo to seek religion in the desert.
Siwah gave him a rude reception. Ragged tribes, ardent but
unregenerate followers of the Prophet, pulled down his tents,
pillaged his luggage, robbed his servants, and knocked him rudely
about. Blunt’s rage at this treatment was like the rage of “Punch’s”
vegetarian who is chased by a bull. “There is no hope to be found in
Islam, and I shall go no further,” is his conclusion. “The less religion
in the world, perhaps the better.”
Humanity and its creeds being thus disposed of, there remained
only the animals to contemplate with satisfaction. “Three quarters of
man’s misery,” says the diary, “comes from pretending to be what he
is not, a separate creation, superior to that of the beasts and birds,
when in reality they are wiser than we are, and infinitely happier.”
This is the kind of thing Walt Whitman used now and then to say,
though neither he nor Sir Wilfrid knew any more about the happiness
of beasts and birds than do the rest of us. But that brave old hopeful,
Whitman, would have laughed his loudest over Blunt’s final analysis
of the situation: “All the world would be a paradise in twenty years if
man could be shut out.” A paradise already imaged by Lord Holland
and the poet Gray:
“Owls would have hooted in Saint Peter’s choir,

And foxes stunk and littered in Saint Paul’s.”
To turn from these pages of pettish and puerile complaint to the

deep-seated discontent of Henry Adams is to reënter the world of the
intellect. Mark Pattison confessed that he could not take a train
without thinking how much better the time-table might have been
planned. It was an unhappy twist of mind; but the Rector of Lincoln
utilized his obtrusive critical faculties by applying them to his own
labours, and scourging himself to greater effort. So did Henry
Adams, though even the greater effort left him profoundly
dissatisfied. He was unelated by success, and he could not reconcile
himself to that degree of failure which is the common portion of
mankind. His criticisms are lucid, balanced, enlightening, and
occasionally prophetic, as when he comments on the Irishman’s
political passion for obstructing even himself, and on the perilous
race-inertia of Russia. “Could inertia on such a scale be broken up,
or take new scale?” he asks dismayed; and we read the answer to-
day. A minority ruling with iron hand; a majority accepting what
comes to them, as they accept day and night and the seasons.
If there is not an understatement in the five hundred pages of the
“Education,” which thereby loses the power of persuasion, there is
everywhere an appeal to man’s austere equity and disciplined
reason. Adams was not in love with reason. He said that the mind
resorted to it for want of training, and he admitted that he had never
met a perfectly trained mind. But it was the very essence of reason
which made him see that friends were good to him, and the world not
unkind; that the loveliness of the country about Washington gave him
pleasure, even when he found “a personal grief in every tree”; and
that a self-respecting man refrains from finding wordy fault with the
conditions under which he lives. He did not believe, with
Wordsworth, that nature is a holy and beneficent thing, or with Blake,
that nature is a wicked and malevolent thing; but he knew better than
to put up a quarrel with an invincible antagonist. He erred in
supposing that other thoughtful men were as discontented as he
was, or that disgust with the methods of Congress corroded their
hours of leisure; but he expressed clearly and with moderation his
unwillingness to cherish “complete and archaic deceits,” or to live in
a world of illusions. His summing up is the summing up of another
austere and uncompromising thinker, Santayana, when confronted
by the same problem: “A spirit with any honour is not willing to live
except in its own way; a spirit with any wisdom is not over-eager to
live at all.”
As our eagerness and our reluctance are not controlling factors in
the situation, it is unwise to stress them too heavily. Yet we must
think, at least some of us must; and it is well to think out as clearly as
we can, not the relative advantages of content and discontent—a
question which briskly answers itself—but the relative rightness.
Emerson believed in the essential goodness of life, in the admirable
law of compensation. Santayana believes that life has evil for its
condition, and is for that reason profoundly sad and equivocal. He
sees in the sensuous enjoyment of the Greek, the industrial
optimism of the American, only a “thin disguise for despair.” Yet
Emerson and Santayana reach the same general conclusion. The
first says that hours of sanity and consideration come to
communities as to individuals, “when the truth is seen, and the
martyrs are justified”; the second that “people in all ages sometimes
achieve what they have set their hearts on,” and that, if our will and
conduct were better disciplined, “contentment would be more
frequent and more massive.”
It is hard to think of these years of grace as a chosen period of
sanity and consideration; and the hearts of the Turk and the
Muscovite are set on things which do not make for the massive
contentment of the world. The orderly processes of civilization have
been so wrenched and shattered that readjustment is blocked at
some point in every land, in our own no less than in others. There
are those who say that the World War went beyond the bounds of
human endurance; and that the peculiar horror engendered by
indecent methods of attack—poison-gases, high explosives and
corrosive fluids—has dimmed the faith and broken the spirit of men.
But Attila managed to turn a fair proportion of the civilized world into
wasteland, with only man-power as a destructive force. Europe to-
day is by comparison unscathed, and there are kinsfolk dwelling
upon peaceful continents to whom she may legitimately call for aid.
Legitimately, unless our content is like the content extolled by Little
Ann’s mother; unless our shoes and stockings are indicative of God’s
meaningless partiality, and unless the contemplation of our
neighbour’s bleeding feet enhances our pious satisfaction. “I doubt,”
says Mr. Wells sourly, “if it would make any very serious difference
for some time in the ordinary daily life of Kansas City, if all Europe
were reduced to a desert in the next five years.” Why Kansas City
should have been chosen as the symbol of unconcern, I do not
know; but space has a deadening influence on pity as on fear. The
farther we travel from the Atlantic coast, the more tepid is the
sympathy for injured France. The farther we travel from the Pacific
coast, the fainter is the prejudice against Japan.
It may be possible to construct a state in which men will be content
with their own lot, if they be reasonable, and with their neighbours’
lot, if they be generous. It is manifestly impossible to construct a
world on this principle. Therefore there will always be a latent grief in
the nobler part of man’s soul. Therefore there will always be a
content as impious as the discontent from which Pope prayed to be
absolved.
The unbroken cheerfulness, no less than the personal neatness,
of the British prisoners in the World War astounded the more
temperamental Germans. Long, long ago it was said of England:
“Even our condemned persons doe goe cheerfullie to their deths, for
our nature is free, stout, hautie, prodigal of life and blood.” This
heroic strain, tempered to an endurance which is free from the waste
of emotionalism, produces the outward semblance and the inward
self-respect of a content which circumstances render impossible. It
keeps the soul of man immune from whatever degradation his body
may be suffering. It saves the land that bred him from the stigma of
defeat. It is remotely and humanly akin to the tranquillity of the great
Apostle in a Roman prison. It is wholly alien to the sin of smugness
which has crept in among the domestic virtues, and rendered them
more distasteful than ever to austere thinkers, and to those lonely,
generous souls who starve in the midst of plenty.
There is a curious and suggestive paragraph in Mr. Chesterton’s
volume of loose ends, entitled “What I Saw in America.” It arrests our
attention because, for once, the writer seems to be groping for a
thought instead of juggling with one. He recognizes a keen and
charming quality in American women, and is disturbed because he
also recognizes a recoil from it in his own spirit. This is manifestly
perplexing. “To complain of people for being brave and bright and
kind and intelligent may not unreasonably appear unreasonable. And
yet there is something in the background that can be expressed only
by a symbol; something that is not shallowness, but a neglect of the
subconscious, and the vaguer and slower impulses; something that
can be missed amid all that laughter and light, under those starry
candelabra of the ideals of the happy virtues. Sometimes it came
over me in a wordless wave that I should like to see a sulky woman.
How she would walk in beauty like the night, and reveal more silent
spaces full of older stars! These things cannot be conveyed in their
delicate proportion, even in the most large and elusive terms.”
Baudelaire has conveyed them measurably in four words:
“Sois belle! Sois triste!”
Yet neither “sulky” nor “triste” is an adjective suggesting with

perfect felicity the undercurrent of discontent which lends worth to
courage and charm to intelligence. Back of all our lives is the sombre
setting of a world ill at ease, and beset by perils. Darkening all our
days is the gathering cloud of ill-will, the ugly hatred of man for man,
which is the perpetual threat to progress. We Americans may not be
so invincibly optimistic as our critics think us, and we may not yet be
“speeding” down the road to destruction, as our critics painfully
foretell; but we are part of an endangered civilization, and cannot
hold up our end, unsupported by Europe. An American woman,
cautiously investing her money in government bonds, said to her
man of business: “These at least are perfectly secure?” “I should not
say that,” was the guarded reply; “but they will be the last things to
go.”
A few years ago there was a period that saw the workingmen and
working-women of the United States engaged in three hundred and
sixty-five strikes—one for every day of the year—and all of them on
at once. Something seems lacking in the equity of our industrial life.
The “Current History” of the New York “Times” is responsible for the
statement that eighty-five thousand men and women met their
deaths by violence in the United States during the past decade.
Something seems lacking in our programme of peace.
Can it be that Mr. Wells is right when he says that the American
believes in peace, but feels under no passionate urgency to organize
it? Does our notable indifference to the history of the past mean that
we are unconcerned about the history of the present? Two things are
sure. We cannot be nobly content with our own prosperity, unless its
service to the world is made manifest; grace before meat is not
enough to bless the food we eat. And we cannot be nobly content
with our unbroken strength, with the sublimity of size and numbers,
unless there is something correspondingly sublime in our leadership
of the wounded nations. Our allies, who saved us and whom we
saved, face the immediate menace of poverty and assault. They face
it with a slowly gathered courage which we honour to-day, and may
be compelled to emulate to-morrow. “The fact that fear is rational,”
says Mr. Brownell, “is what makes fortitude divine.”
Allies
“Friendship between princes,” observed the wise Philippe de
Commines, “is not of long duration.” He would have said as much of
friendship between republics, had he ever conceived of
representative government. What he knew was that the friendships
of men, built on affection and esteem, outlast time; and that the
friendships of nations, built on common interests, cannot survive the
mutability of those interests, which are always liable to deflection. He
had proof, if proof were needed, in the invasion of France by Edward
the Fourth under the pressure of an alliance with Charles of
Burgundy. It was one of the urbane invasions common to that
gentlemanly age. “Before the King of England embarked from Dover,
he sent one of his heralds named Garter, a native of Normandy, to
the King of France, with a letter of defiance couched in language so
elegant and so polite that I can scarcely believe any Englishman
wrote it.”
This was a happy beginning, and the end was no less felicitous.
When Edward landed in France he found that Louis the Eleventh,
who hated fighting, was all for peace; and that the Duke of Burgundy,
who generally fought the wrong people at the wrong time, was in no
condition for war. Therefore he patched up a profitable truce, and
went back to England, a wiser and a richer man, on better terms with
his enemy than with his ally. “For where our advantage lies, there
also is our heart.”
The peculiar irritation engendered by what Americans discreetly
designate as “entangling alliances” was forced upon my perception
in early youth, when I read the letters of a British officer engaged in
fighting the Ashanti. The war, if it may be so termed, was fought in
1873, and the letters were published in “Blackwood’s Magazine.”
The Ashanti had invaded Fantiland, then under a British
protectorate, and the troops commanded by Sir Garnet Wolseley
were presumably defending their friends. This particular officer
expressed his sense of the situation in a fervid hope that when the
Ashanti were beaten, as they deserved to be, the English would then
come to speedy terms with them, “and drive these brutes of Fanti off
the map.”
It is a sentiment which repeats itself in more measured terms on
every page of history. The series of “Coalitions” formed against
Napoleon were rich in super-comic, no less than in super-tragic
elements; and it was well for those statesmen whose reason and
whose tempers were so controlled that they were able to perceive
the humours of this giant game of pussy-in-the-corner. A mutual fear
of France drew the Allies together; a mutual distrust of one another
pulled them apart. Sir Gilbert Elliot, afterwards Lord Minto,
endeavoured from the beginning to make England understand that
Austria would prefer her own interests to the interests of the
Coalition, and that it was not unnatural that she should do so. The
situation, as he saw it, was something like this:
“Austria: ‘If I am to dance to your tune, you must pay the piper.’
“England: ‘So long as I lead the figure, and you renounce a pas
seul.’”
Unfortunately the allurements of a pas seul were too strong to be
anywhere resisted. Prices grew stiffer and stiffer, armies melted
away when the time for action neared. Britain, always victorious at
sea, paid out large sums for small returns on land. Her position was
briefly summed up by Sir Hugh Elliot—more brilliant and less astute
than his brother—at the hostile Court of Prussia. Frederick the Great,
overhearing the pious ejaculation with which the Englishman greeted
the arrival of a satisfactory dispatch from Sir Eyre Coote, said to him
acidly: “I was not aware that God was also one of your allies.” “The
only one, Sire, whom we do not finance,” was the lightning retort.
One more circumstance deserves to be noted as both familiar and
consolatory. Napoleon’s most formidable purpose was to empty
England’s purse by waging a commercial war. When he forbade her
exports to the countries he fancied he controlled, he was promised
implicit obedience. In March, 1801, Lord Minto wrote serenely to
Lord Grenville: “The trade of England and the necessities of the
Continent will find each other out in defiance of prohibitions. Not one
of the confederates will be true to the gang, and I have little doubt of
our trade penetrating into France itself, and thriving in Paris.”—
Which it did.
The comfortable thing about the study of history is that it inclines
us to think hopefully of our own times. The despairing tone of
contemporary writers would seem to indicate that the allied nations
that fought and won the Great War have fallen from some high
pinnacle they never reached to an abysmal depth they have never
sounded. When Dean Inge recorded in “The Contemporary Review”
his personal conviction that the war had been “a ghastly and
unnecessary blunder, which need not have happened, and ought not
to have happened,” this casual statement was taken up and
repeated on both sides of the Atlantic, after the exasperating fashion
in which a Greek chorus takes up and repeats in strophe and
antistrophe the most depressing sentiment of the play. And to what
purpose? Did any sane man ever doubt that Austria’s brutal
ultimatum to Serbia was a ghastly and unnecessary blunder? Did
any sane man ever doubt that Germany’s invasion of Belgium was a
ghastly and unnecessary blunder? But if Dean Inge or his
sympathizers knew of any argument, save that of arms, by which the
Central Powers could have been convinced that they were
blundering, and persuaded to retrieve their blunder, so that what
ought not to have happened need not have happened, it is a pity that
this enlightenment was not vouchsafed to an imperilled world.
It is possible for two boys to build up a friendship on the basis of a
clean fight. It is possible for two nations to build up a good
understanding on the basis of a clean fight. The relations between
Great Britain and South Africa constitute a case in point. Germany’s
fighting was unclean from start to finish. Therefore, while there are
many to feel commiseration for her, there are none to do her honour.
The duration of the war has little to do with this strong sentiment of
disesteem. Had it lasted four months instead of four years, the deeds
done in Belgium and in France would have sterilized the seeds of
friendship in the minds of all who remembered them. To an abnormal
sense of superiority, Germany added an abnormal lack of humour,
which made her regard all resistance as an unjustifiable and
unpardonable affront. Her resentment that Belgians should have
presumed to defend their country was like the resentment of that
famous marauder, the Earl of Cassillis, when Allan Stewart refused
to be tortured into signing away his patrimony. “You are the most
obstinate man I ever saw to oblige me to use you thus,” said the
justly indignant Earl. “I never thought to have treated any one as
your stubbornness has made me treat you.”
The emotional ebb-tide which followed the signing of the armistice
was too natural to be deplored, save that it gave to obstructionists
their chance to decry the matchless heroisms of the war. No people
can be heroic over the problem of paying debts out of an empty
treasury. Need drives men to envy as fullness drives them to
selfishness. Bargaining is essential to the life of the world; but
nobody has ever claimed that it is an ennobling process. If it were
given to debtors to love their creditors, there would have been no
persecution of the Jews. If it were given to creditors to love their
debtors, there would be no poverty on earth. That all the nations,
now presumably on friendly terms, should be following their own
interests would seem to most of us the normal thing it is, if they did
not so persistently affect to be amazed and grieved at one another’s
behaviour, and if the mischief-makers of every land were not actively
engaged in widening breaches into chasms.
It is inevitable and logical that the men who were pacifists when
the word had a sinister meaning should heartily detest their
countries’ allies who helped them win the war. The English “Nation
and Athenæum” wrote of France in 1922 as it might have written—
but did not—of Germany in 1914. Poincaré it likened to Shylock,
France to a butcher eager for the shambles. “French militarism at
work in the Rhineland is a lash to every evil passion.” “Europe is kept
in social and political disorder by the sheer selfishness of France.”
“There was a France of the mind. Victory killed it, and a long slow
renovation of the soul must precede its resurrection.”
Like the ingenuous Mr. Pepys, the “Nation” does “just naturally
hate the French,” and takes it hard that the world should persistently
regard them as a valuable asset to civilization. The concentrated
nationalism which held Verdun now expresses itself in a steely
resolution to hold France, and to recover for her out of the wreckage
of Europe the material aid of which she stands in need. Coöperation
is a good word and a good thing. To a Frenchman it means primarily
the interest of his own country. What else does it mean to any of us?
Britain’s policy of conciliation, our policy of aloofness, Germany’s
bargaining, and Russia’s giant bluff, all have the same significance.
“Be not deceived! Nothing is so dear to any creature as his profit,”
said Epictetus, who, having stript his own soul bare of desires, was
correspondingly ready to forgive the acquisitive instincts of others.
Mr. Edward Martin, writing very lucidly and very sympathetically of
the French, admits that their conception of their duty to the world “is
to defend France, keep her functioning, and make her powerful and
prosperous.” It sounds narrow, and practical, and arrogant. It also
sounds familiar. France feels herself to be intellectually and
artistically a thing of value. The best service she can render to the
world is her own preservation. How does America feel? The very
week that Mr. Martin offered his interpretation of Gallic nationalism, a
writer in the “Review of Reviews” (New York), after asserting with
indescribable smugness that Americans “have been trained to an
attitude of philanthropy hardly known in other countries,” proceeded
to illustrate this attitude by defending high tariffs, restricted
immigration, and other comforting pieces of legislation. “Our best
service to the world,” he explained, “lies in maintaining our national
life and character.”
This is just what France thinks, only her most zealous sons forbear
to define prudence as philanthropy. They believe that the world is the
better for what they have to give; but they know that it is not for the
world’s sake that they so keenly desire to be in a position to give it.
They are profoundly sentimental, but their sentiment is all for la
patrie. Internationally they are practical to the point of hardness, and
they see no reason why they should be otherwise. There is for them
no pressing necessity to assume that they love their neighbours as
themselves.
It is different with Americans in whom idealism and materialism
dispute every inch of the ground. A Texan professor, sent by the
American Peace Commission to investigate conditions in Germany,
published in “The North American Review,” May, 1922, a paper on
“American Ideals and Traditions,” which was widely quoted as
embodying a clear and fervid spirit of hopefulness, much needed in
these disillusioned days. The writer took the high ground that
Americans were the first people in the world “to make the spirit of
disinterested human service the measure of a nation as well as of a
man. What is now termed American humanitarianism is but the
American spirit of philanthropy at home, translated into international
relations.” This “simple historical fact” is the key to all our actions.
“The entrance of America into the Great War was not a species of
interruption in the normal flow of its idealism; but was the irresistible
on-pressing of the great current of our ‘will to human service.’”
One wonders if this particular idealist remembers what happened
in Europe, in the United States, and on the high seas, between July,
1914, and April, 1917? Does he recall those thirty-two months,
close-packed with incidents of such an order that their cumulative
weight broke down our hardy resistance to “service,” and drove us
slowly but splendidly into action? Great deeds are based on great
emotions; but the conflicting emotions of that period are not
accurately described as “irresistible.” The best of them were too long
and too successfully resisted. We gain no clear impression of events
by thinking in ornamental terms. Headlines are one thing, and history
is another. “In judging others,” says Thomas à Kempis, “a man
usually toileth in vain. For the most part he is mistaken, and he easily
sinneth. But in judging and scrutinizing himself, he always laboureth
with profit.”
The continued use of the word “entangling” is to be regretted. It
arouses an excess of uneasiness in cautious souls. All alliances
from marriage up—or down—must necessarily entangle. The
anchorites of Thebais are the only examples we have of complete
emancipation from human bonds. That simple and beautiful thing,
minding our own affairs and leaving our neighbours to mind theirs, is
unhappily not possible for allies. Neither is a keen and common
desire for peace a sufficient basis for agreement. Peace must have
terms, and terms require a basis of their own—justice, reason, and
the limited gains which are based on mutual concessions. “Whether
we are peaceful depends upon whether others are provocative.” Mr.
W. H. Mallock tells us a pleasant story of an old Devonshire woman
who was bidden by the parson to be “conciliating” to her husband. “I
labour for peace, sir,” was the spirited reply. “But when I speak to he
thereof, he directly makes hisself ready for battle.”
There are students of history who would have us believe that
certain nations are natural allies, fitted by character and
temperament to agree, and to add to one another’s pleasure and
profit. Germany and Russia have been cited more than once as
countries instinctively well disposed towards each other, because
each supplements the other’s talents. Bismarck ranked the Germans
as among the male, and the Slavs as among the female nations of
the world. The driving power he rightfully assigned to Germany. “The
soft Slav nature,” says a writer in “The New Republic,” “emotional,
sensitive, but undisciplined, has derived most of such progress as it
has made in material civilization from German sources.”
Both countries have proved unsound allies, and Russia has the
feminine quality of changeableness. “Dangerous to her foes,
disastrous to her friends.” Both make the same kind of currency, and
stand in need of business partners who make a different sort.
America, with the gold of Europe locked up in her treasury, is the
most desirable, but least accessible, partner in Christendom. As the
great creditor of the civilized world, she has been impelled to assert
that no participation on her part in any international conference
implies a surrender of her claims to payment. France, as the great
sufferer by a world’s war, has made it equally clear that no
participation on her part implies a surrender of her claims to
reparation. The anger and shame with which the Allies first saw the
injuries inflicted on her have been softened by time; and that strange
twist in human nature which makes men more concerned for the
welfare of a criminal than for the welfare of his victim has disposed
us to think kindly of an unrepentant Germany. But France cannot
well forget the wounds from which she bleeds. Less proud than
Britain, which prefers beggary to debt, she is infinitely more logical;
and it is the unassailable strength of her position which has irritated
the sentimentalists of the world, whose hearts are in the right place,
but whose heads are commonly elsewhere.
The French press has waxed sorrowful and bitter over France’s
sense of isolation. Her cherished belief in the “unshakable American
friendship” has been cruelly shattered, and she has asked of Heaven
and earth where is the (proverbially absent) gratitude of republics.
That there is no such thing as an unshakable national friendship is
as well known to the clear-headed and well-informed French as to
the rest of us. They were our very good friends in 1777, and our love
for them flamed high. They were our very bad friends in 1797, and
by the time they had taken or sunk three hundred and forty American
ships, our affection had grown cool. It revived in 1914 under the
impetus of their great wrongs and greater valour. Some good feeling
remains, and bids fair to remain, if the press and the politicians of
both lands will kindly let it alone; but popular enthusiasm, a fire of
straw, burned itself quickly out. After all, we ourselves are no longer
the idol of our whilom friends. A fairy god-mother is popular only
when she is changing pumpkins into coaches, and mice into
prancing bays. When she gives nothing but good advice, her words
are no more golden than her neighbour’s. In the realm of the
practical, a friendship which does not help, and an enmity which
does not hurt, can never be controlling factors.
Great Britain sets scant store by any ally save the sea. She has
journeyed far, changing friends on the road as a traveller by post
changed horses. She has fought her way, and is singularly devoid of
rancour towards her enemies. The time has indeed gone by when,
after battle, the English and French knights—or what was left of
them—would thank each other for a good fight. Those were days of
lamentable darkness, when the last thing a gentleman craved was
the privilege of dying in his bed by some slow and agonizing
process, the gift of nature, and gratefully designated as “natural.”
The headsman for the noble, the hangman for the churl, and the
fortunes of war for everybody, made death so easy to come by, and
so inexpensive, that there was a great deal of money left for the
pleasures of living. That stout-hearted Earl of Northumberland who
thanked God that for two hundred years no head of his house had

Global Criminal Law Postnational Criminal Justice in The Twenty First Century 1St Edition Adan Nieto Martin Full Chapter

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Global Criminal Law Postnational Criminal Justice in The Twenty First Century 1St Edition Adan Nieto Martin Full Chapter

Uploaded by

Copyright:

Available Formats

Global Criminal Law: Postnational

Criminal Justice In The Twenty-First

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

“naked feet bleed on the stones,”

“This poor little beggar is hungry and cold,

“Owls would have hooted in Saint Peter’s choir,

To turn from these pages of pettish and puerile complaint to the

“Sois belle! Sois triste!”

Yet neither “sulky” nor “triste” is an adjective suggesting with

You might also like

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